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HEARINGS 



BEFORE THE 



SUBCOMMITTEE OF THE 
COMMITTEE ON AGRICULTURE 



HOUSE OF REPRESENTATIVES 

SIXTY-FOURTH CONGRESS 

First Session 

ON 



H. R. 11712 



SATURDAY, JUNE 17, 1916 



my 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1916 






D. of D. 
AUG 7 1916 



^ 






GAME REFUGES. 



House of Representatives, 
Subcommittee of Committee ox Agriculture, 

Saturday, June 17, 1916. 
The subcommittee, consisting of Hon. H. M. Jacoway, Hon. Jolin 
V. Lesher, Hon. M. K. Reilly, Hon. James C McLaughlin, and Hon. 
W. W. Wilson, this day met, Hon. H. M. Jacoway (chairman) pre- 
siding, 

Mr. Jacoway. The subcommittee has under consideration to-day 
H. R. 11712, introduced by Mr. Hayden, and I will ask that the bill 
be printed at this point in the record. 

[H. R. 11712, Sixty-fourth Congress, first session.] 
A BILL To establish game sanctuaries in national forests, and for other purposes. 

Be it enacted by the Senate and House of Representatives of the United States of America 
in Congress assembled, That for the purpose of providing breeding places for game 
animals on lands in the national forests not chiefly suitable for agriculture the President 
of the United States is hereby autliorized, upon recommendation of the Secretary of 
Agriculture and with the approval of the governors of the States in which the respective 
national forests are located, to establish, by public proclamation, certain specified 
areas within said forests as game sanctuaries or refuges wliich shall be devoted to the 
increase of game of all kinds naturally adapted thereto, but it is not intended that 
the lands included in such game sanctuaries or refuges shall cease to be part of the 
national forests wherein they are located, and the establishment of such game sanc- 
tuaries or refuges shall not prevent the Secretary of Agriculture from permitting 
grazing on these areas of cattle, sheep, and other domestic animals or permitting 
other uses of the national forests under and in conformity with the laws and the rules 
and regulations applicable thereto, so far as such use may be- consistent wdth the 
purposes for which such game sanctuaries or refuges are authorized to be established. 

Sec. 2. That when such game sanctuaries or refuges have been established, as 
provided in section one of this act, hunting, pursuing, poisoning, killing, or capturing 
by trapping, netting, or any other means, or attempting to hunt, i)ursue. kill, or 
capture any wild animals or birds or fish for any purpose whatever u])on the lands 
of the United States \vithin the limits of said game sanctuaries or refuges shall be 
unlawful except as hereinafter provided, and any person violating any jirovision of 
this act or any of the rules and regulations made under the provisions of this act shall 
be deemed guilty of a misdemeanor and shall upon conviction in any Ignited States 
court be fined in a sum not exceeding |500, or be imprisoned for a i)eriod not exceed- 
ing six months, or shall suffer both fine and imprisonment, in the discretion of the 
court. 

Sec. 3. That the Secretary of Agriculture shall execute the provisions of this act, 
and he is hereby authorized to make all needful rules and regulations for the admin- 
istration of such game sanctuaries or refuges in accordance with the purpose of this 
act, including regulations under which fishing not in contravention of State laws, and 
hunting, capturing, or killing predatory animals, such as wolves, coyotes, foxes, 
pumas, and other species destructive to live stock or mid life may be permitted 
witliin the limits of said game sanctuaries or refuges. 

Sec. 4. That the Secretary of Agriculture shall cause the boundaries of all game 
sanctuaries or refuges established under the provisions of this act to l)e suital)ly marked 
where necessary and notices to be j)osted showing the location thereof and warning 
the public that hunting game animals and Inrds is prohibited therein, and tliat hunt- 
ing, capturing, or killing predatory animals, and lishing is permitted only under the 
rules and regulations of the Secretary of Agriculture. 

3 



4 GAME REFUGES. 

Sec. 5. That it is the purpose of this act to provide breeding places for large wild 
animals, such as deer, elk, mountain sheep, and other species, which may be made 
to produce an increased food supply by breeding under natural conditions and spread- 
ing over adjacent territory, whereon they may be hunted in accordance with State 
laws; to establish sanctuaries of medium size rather than large preserves; and when- 
ever possible to establish chains of sanctuaries which in turn will restore wild game 
animals to intervening territory; but it is not the purpose to authorize the establish- 
ment of such game sanctuaries or refuges as will embrace all the hunting grounds of 
any given region. 

STATEMENT OF HON. FRANK W. MONDELL, A REPRESENTA- 
TIVE IN CONGRESS FROM THE STATE OF WYOMING. 

Mr. Jacoway. Yoo may proceed, Mr. Mondell. 

Mr. Mondell. Mr. Chairman and gentlemen of the subcommittee, 
I am opposed to the bill under consideration for a variety of reason's, 
as follows : 

First. Because Congress has not the constitutional authority to 
enact such legislation. 

Second. Because if it were within the power of Congress to enact 
such legislation it would not be wise to do so, owing to the fact that 
the evils that would attend and follow such legislation and its en- 
forcement by Federal authorities would far outweigh any good that 
it may be claimed would flow from it. 

Third. Because — and I want particularly to call your attention to 
this — the States affected have full, complete, and unquestioned 
authority to provide for game preserves or sanctuaries, as the bill 
proposes, and to fully and completely protect the game within them, 
and a number of States have done so. As a matter of fact, not only 
have the States full, complete, and absolute authority to do every- 
thing that is proposed in this bill, but they have authority to do 
very much more in the protection of game than the bill proposes, 
and do it. 

The bill proposes to authorize ths President, upon the recom- 
mendation of the Secretary of Agriculture, and with the approval of 
the governors of the States, to establish certain areas within the 
national forests as game sanctuaries or refuges; and section 2 of the 
bill provides a penalty to be fixed by a United States court of both 
fine and imprisonment for the hunting, pursuing, or killing, or 
attempting to hunt, pursue, kill, or capture any wild animal, birds, 
or fish within the limits of these preserves; while section 3 authorizes 
the Secretary of Agriculture to allow fishing or the hunting or 
killing of predatory wild animals in a manner not in contravention of 
State laws and under such regulations as he may prescribe. 

It will be noted that the bill raises squarely the cjuestion as to the 
jurisdiction of the Federal and State governments, respectively, 
over the hunting, killing, and taking of wild game, and collaterally 
the question of the extent or character of Federal authority and 
jurisdiction over public lands reserved as national forests. 

As to the first and primarily important of these propositions, there 
is little ground for difference of opinion. In the case of Ward v. 
Racehorse (163 U. S., p. 507) the court held ''the power of a State 
to control and regulate the taking of game can not be questioned." 

I have quoted the exact words of the decision, and this power was 
declared to be "complete," page 510, and it was held that this power 



GAME REFUGES. 5 

extends to the public lands of the United Stales within the State's 
borders, (See Cooley's Constitutional Limitations, p. 291.) 

Such is the language of the court. 

The earliest of the widely quoted cases on the character of the 
State's authority over the capture or kilhiig and taking of game is 
that of Geer v. Connecticut (161 U. S., 519). This was a case in 
which the authority of the State to control the disposition of game, 
or its transportation beyond the State's border after being lawfully 
killed was challenged in the Connecticut courts, and the case went 
to the Supreme Court on the proposition that the State statute 
violated the Constitution of the United States. The opinion of the 
court, which was rendered March 2, 1898, by Justice Wlnte, discussed 
at length the character of wild game, the questions of ownership in 
the same, and the control of the sovereign over game, going back to 
English law and foUowing through the colonics to the States of the 
Union. 

That case is the one most quoted, because it covers the ground 
most completely. 

The decision quoted with approval m.any State and Federal cases 
to the effect that "the wild game within a State belongs to the people 
in their collective sovereign capacity" (Ex parte Maier, Supremo 
Court of California) ; ' ' the State represents its people in this owner- 
ship" (Martin v. Waddell, 16 Pet., 410); and this ownersliip and 
control "is in the State, not as a proprietor but in its sovereign 
capacit}'" (State v. Rodman, Supreme Court, Minnesota). 

Referring to the complete and exclusive authority of the sovereign 
over game the court in this case — that is, the case of Geer v. Con- 
necticut — said : 

It is also certain that tliis power which the colonies thus possessed passed — 

That is, the sovereign power over game — 

to the States with the separation from the mother country, and remains in them at the 
present day. 

The next of the important cases, and one very much m point hi 
comiection with this legislation, is the case of Ward v. Racehorse 
(U. S. Rept., 163, p. 504), Ward bemg a sheriff in my State and Race- 
horse being an Indian. The decision in this case was also delivered 
by Justice Wliite and was handed down May 25, 1896. This case 
arose out of the hunting of elk by certam Indians in the State of 
Wyommg at a time when the State game law prohibited such hunting. 
It was claimed on behalf of the Indians that they had a right to hunt 
on the unoccupied lands of the United States by reason of the pro- 
visions of article 4 of the treaty of February 24, 1869, with the 
Bannock Indians, wherein it was provided that the Indians — 

shall have the right to hunt upon the unoccupied lands of the United States so long 
as game may be found thereon and so long as peace subsists among the whites and 
Indians on the borders of the hunting districts. 

I have already quoted briefly from this decision. It was held by 
the court that the State of Wyoming was admitted mto the Union 
on an equality and with aU of the powers of the other States. The 
court said: 

The power of all the States to regulate the killing of game within their borders will 
not be gainsaid, yet, if the treaty applies to the unoccupied land of the United States 
in the State of Wyoming, that State" would be bereft of such power since each isolated 



6 GAME REFUGES. 

piece of land belonging to the United States as a private owner, so long as it continued 
to be unoccupied land, would be exempt in this regard from the authority of the State. 
Wyoming tjien will have been admitted into the Union not as an equal member but 
as one shorn of a legislative power vested in all the other States of the Union, a power 
resulting from the fact of statehood and incident to its plenary existence. 

The court held that no such contention was tenable. 

As indicating the court's view as to the lack of any authority on the 
part of the Federal Government over the capture and killing of game 
within a State, is this statement summing up the argument of counsel: 

But the argument goes further than this, since it insists that, although by the treaty 
the hunting privilege was to cease whenever the United States parted merely -Rdth the 
title to any of its lands, yet that privilege was to continue, although the United States 
parted with its entire authority over the capture and killing of game. 

I have already referred to the language of the decision to the effect 
that, "The power of a State to control and regulate the taking of 
game can not b© questioned," "when the United States had called 
into being a sovereign State, a necessary incident of whose authority 
was the complete power to regulate the killing of game within its 
borders." The court held that a repeal of the treaty resulted from the 
act admitting the State into the Union so far as it related to the hunt- 
ing of game within the State. 

That case covers every feature of the situation presented by this 
bill. The complete power and exclusive jurisdiction of the State, the 
Federal Government having parted with all the authority it had when 
the State was admitted, and further, that such complete and exclusive 
jurisdiction related to the public lands just as much as it related to the 
private lands. 

There are a number of other and more recent decisions of Federal 
and State courts even more strongly emphasizing, if that were possible, 
the complete jurisdiction of the State over the taking and killing of 
game, one of which is the case of the United States v. Shauver (214 
Fed. Rep., 154), which case is now before the Supreme Court of the 
United States. That case involves, of course, certain other questions 
than those directly raised by this legislation, the questions that were 
raised by the passage of so-called migratory bird law. 

That case challenges the constitutionality of the migratory bird 
law, and is now before the court for a rehearing. One very good 
reason for not reporting legislation affecting the control of game within 
the States at this time is the fact that there is before the Supreme 
Court that case which raises the general question, and the court in 
its decision will undoubtedly cover practically the entire field as 
they did in the case of Gecr v. Connecticut, and to a lesser extent in 
the case of Ward v. Racehorse. 

I feel that I have taken up more time than, perhaps, I should in 
the presentation of this feature of the case, because as a matter of 
fact, State control over the hunting or taking of game is either ad- 
mitted by those who are in favor of this bill, or they entirely avoid 
that issue in their arguments. It is true that in the discussion before 
the committee a few days ago, one gentleman advanced the novel 
theory that the sovereign, whom he admitted had exclusive jurisdic- 
tion over game, was not the State but the Federal Government. 
Tliat argument is conclusively settled in the case of Geer v. Con- 
necticut and Ward v. Racehorse, particularly the first case, where the 
question, where the sovereign authority rested, was argued at length, 



GAME REFUGES. 7 

beginning with ancient times and coming on down through the 
Colonies to the States. 

As I said, I feel that I have taken up more time than I should in 
the presentation of this feature of the case, because, as a matter of 
fact, State control over the hunting and taking of game is either 
admitted by those who favor this legislation or they entirely avoid 
that question, and the contention that it is the Federal Government 
that is the sovereign is not tenable for a moment in view of the fact 
that in the case of Geer v. Connecticut that was one of the points 
raised. The court held that the State was the sovereign and that its 
sovereignty was absolute and exclusive. 

An effort is made, however, to find an excuse for this legislation 
in the theory that the l"^nited States as a proprietor may assert con- 
trol over the taking of game and that it may go as far in that direc- 
tion as is proposed in this bill. That argument was made in the 
Racehorse case and because of the fact that the lands on which the 
Indians hunted belonged to the* United States. The court brushed 
the contention aside, calling attention to the fact that it was idle to 
argue that the Federal Government, which lost, waived all control 
over game by the admission of the State into the Union, still main- 
tained some sort of control by reason of its land ownership. 

THE CLAIM AS A PROPRIETOR. 

But it is urged that Congress has the authority to legislate as is 
herein proposed, under section 3 of Article IV of the Constitution of 
the United States, wliich provides that "The Congress shall have the 
power to dispose of and make all needful rules and regulations respect- 
ing the territory and other property belonging to the Unted States." 
It is claimed that as the land on which it is proposed to establish 
these game preserves are lands of the United States, the power oyer 
them and in respect to them granted by the constitutional provision 
I have cpoted is sufficient to authorize legislation of this character. 
That argument is made in a report signed by the Secretary of Agri- 
culture, under date of May 31, addressed to Hon. Carl Hayden and 
now before this committee. The argument follows quite closely a 
more elaborate argument made in a letter dated January 3, 1902, 
signed by P. C. Knox, Attorney General, and addressed to the Hon. 
John F. Lacey, chairman of the Committee on the Public Lands of the 
House of Representatives. Not bemg a lawyer, it is perhaps presump- 
tious on my part to attempt to answer the arguments of lawyers, hke 
the present Secretary of Agriculture and the former Attorney General; 
but I think that a careful perusal of their arguments will make it very 
clear, even to the lay mind, that they have gone far afield in their argu- 
ment and have necessarily left some very wide gaps m the thread of 
their logic. 

We are, aU of us, familiar with the general proposition that the 
Federal Government is one of hmited powers and that all of the 
powers not granted are reserved to the States or tlie people and that 
powers can not be implied or inferred unless they are a necessary inci- 
dent to powers clearly granted. I have no disposition to cpiarrel with 
gentlemen who give a wide construction to the constitutional pro- 
vision that has been c[uoted, provided that construction does not imply 
power not necessary to carrying out the purposes of the granted 



8 GAME EEFUGES. 

power. There are two very weak spots in the arguments contamed m 
the opinions to which I have referred. One is that no court has ever 
held, directly or indirectly, favorably to their contention, and second, 
that givmg the widest possible consr^uction to the word "property" 
and tJie word "territory" contained in the section of the Constitution 
referred to, and admitting, for the sake of argument, that they apply 
to and cover and embrace lands held in forest reserves by no possible 
extension of 'authority or jurisdiction necessary to carrying out the 
purpose of the section, can legislation of this kind be justified. 

The article in question provides that Congress shall have the power 
to dispose of and make all "needful" rules and regulations respecting 
the territory and other property belonging to the United States. 
What is the property belonging to the United States in a forest 
reserve? It is the land and all that grows upon it and all that it 
contains. The water of the flowing streams is not the property of 
the United States. The wild game that may feed upon or roam over 
these lands has been declared by th*e courts, in the cases I have re- 
ferred to, to be the property of all the people, under the exclusive 
jurisdiction of the States, That includes the fish as well as the game, 
because some of the decisions of the State courts are in regard to 
fish. The courts have held that Congress has the power to legislate 
to protect the property of the United States, I am one of those who 
believe that it has the poA\er to go far in doing that. The courts 
have held that Congress in exercising this power to protect the prop- 
erty of the United States may go farther than the individual in the 
protection of his property, because it may actually legislate and pre- 
scribe punisluTient for the destruction of or injury to its property. 
I do not deny that, but when it attempts to do anything with wild 
game, to protect, to destroy, or to regulate, it is attempting to manage 
something that clearly is not the property of the United States. 
That will not be denied by anyone in the face of the decisions. The 
courts have held repeatedly that wild game is the property of the 
people, held in trust for them by the sovereign, the State. That has 
been repeated over and over in substance. 

It can not be argued that the Government needs to protect its 
property against wild game, for the Government has no property 
that the wild game will injure, and, at any rate, it is not attempting 
in this legislation to protect the property against the game but to 
increase the game on the property. The Government would have 
a perfect right to fence its land against w41d game, but that is not 
what it is proposing to do. 

But it is further insisted that the Federal Government as the pro- 
prietor has authority to forbid trespass, and the courts have held 
that it may go further than an ordinary proprietor and provide 
punishment for trespass or injury to lands in forest reserves, and it 
is claimed that the Federal Government may keep people off of its 
land altogether, or allow them on under certain conditions, and 
therefore do what is proposed to be done in this bill. The fallacy 
of that argument lies in the fact that the right of the Federal Gov- 
ernment to protect its property and punish for injury to it is assumed 
to include the right to punish in its sovereim capacity acts that do 
not injure its property, affecting a kind of property that is in the 
ownership of and under the complete control, according to the courts, 
of another sovereio-n. 



GAME REFUGES. 9 

When we come to analyze these fine-spun theories whereby it is 
sought to invade the authority of the State, it will be seen that they 
are all part of an attempt to secure by indirciction a control and 
jurisdiction that everyone admits could not be secured directly. 
If there is any one form of Federal encroachment upon the people's 
reserved sovereignty that is more dangerous than another, it is that 
form of encroachment which seeks the extension of Federal authority 
by indirect, roundabout, and underground means. 

teVILS AS COMPARED TO BENEFITS CLAIMED. 

So n/dch for tlio legal aspect of the situation. I have said that 
I v> tis opposed to this legislation, because if it were within the power 
of Congress to enact such legislation it would not be wise to do so; 
because the c.^ils that would attend and follow it would far outw cigh 
any gocd that it may bo claimed would flow from it. It is claimed, 
on behalf of this legislation, that the wild game of the western coantry 
is rapidly decreasing, that it is highly important that it shoukl be 
increased in numbers, and that these game sanctuaries scattered 
around throughout the forest reserves woidd give the v/ild game an 
opportunity to increase. As a matter of fact, it is not true that 
wild game of all kinds is rapidly and contiimously decreasing in 
numbers at this time. In some parts of the West it has been very 
well protected and is on the increase. But assuming that this plan 
v% ould increase the wild game, but not admitting that it is the only 
way to increase it, at what a loss to the dignity of the States, at 
what a cost of money and peace of mind to their citizens, at what a 
certainty of continual conflict between the Federal and local author- 
ities, would the possible benefits be secured. Nobody knows how 
many of these reserves might be created, how large a territory in the 
aggregate they might include. The last section of the bill states 
that it is the purpose of the bill to estabhsh sanctuaries of medium 
size rather than large preserves, and it is not the purpose to estab- 
lish sanctuaries or preserves to embrace all the hunting groimds of 
an\" given region. Anyone familiar with legislation knows that such 
an expression of intent on the part of the law-making body still 
leaves almost unlimited latitude for action. The bill provides that 
these preserves shall be established upon the recommendation of the 
Secretary of Agriculture. I presume they would not be otherwise 
established. It also provides that they sliall have the approval of 
the governors of the "States, though it is doubtful whether such an 
approval would be an essential under the bill. 

It has never seemed to me, however, that it would help the matter 
any to provide that the governor shall be the medium througli which 
the sovereignty of tlie State is attempted to be reduced. 

Assume the preserves were created in numbers in various parts of 
the mountain forest reserves. In few cases could their boundaries, 
except at great expense, be very clearly marked if they are to be 
numerous and small as proposed. The hunter on the forest reserve 
pursuing game m season under the State law would constantly be 
in danger or be tempted to foUow game onto tlie game refuge, or to 
shoot game on the game refuge from adjoining territory, whereupon 
the jurisdiction over his act would pass from a State to a Federal 
court. 



10 GAME KEFUGES. 

In my State there are places where by the nearest route of travel 
you would have to go several hundred miles to reach a Federal court 
to try a man for, let us say, killmg a jack rabbit on one of these 
reserves or shooting at one with an attempt to kill it, or a mischievous 
small boy for robbing a bird's nest. 

These Federal courts in Western States are frequently hundreds 
of miles from the areas that would be designated as game refuges 
and the citizen would constantly run the risk of bemg hauled away 
to a Federal court for some trifling mfraction of a rule or regulation 
of the Secretary, while pursuing game in accordance with State laws, 
if we give the Secretary, as is proposed, full authority to prescribe 
what act shall constitute a misdemeanor or crime, punishable as 
provided m the bill. 

The provisions of the bill with regard to fishing are even more 
clearly unconstitutional than those with regard to hunting, because 
they might not involve a complete prohibition, but a regulation of 
the fishing privilege — there is no doubt about that bemg the exclu- 
sive province of the State — it would afford even greater opportunity 
for friction and conflict between State and Federal jurisdiction. 

The rules and regulations of the Secretary of Agriculture might 
subject a citizen to the extreme penalty oi the bill for the most 
trifling act of carelessness or inadvertence, and yet it is proposed to 
give the Secretary full authority to thus declare and punish what he 
is pleased to designate offenses. 

Mr, Lesher. Is not that regulated by law, the crime or the mis- 
demeanor ? 

Mr. MoNDELL. The bill provides that any violation of the rules 
and regulations promulgated by the Secretary shall be subject to a 
fine not to exceed $500 and imprisonment not to exceed six months, 
and the Secretary, under that authority, could fine a man the maxi- 
mum penalty for the destruction of a bird's nest, the taking of a 
trout, or the killing of a chipmunk. Perhaps he would not go that 
far, but he would have complete and unquestioned authority to do 
so. If legislation of this kind were enacted, and unless or until the 
courts set it aside, because the courts have decided that rules and 
regulations may be promulgated which will have the force of law. 
If they relate to subjects over which Congress has control, they 
went far afield when they so held, but they did. 

Mr. SissoN. That grew out of the regulations of the Postmaster 
General ? 

Mr. MoNDELL. Yes, sir. There are some cases where it seems 
to be necessary, but it is a very dangerous power. 

STATES HAVE FULL POWER. 

I have stated that I was opposed to this legislation, because the 
States affected have full, complete, and uncj[uestioned authority to 
do all that the bill proposes to have done and to fuUy and completely 
protect the game anywhere within their borders. The migratory- 
bird law was passed on the theory and under the claim that the 
States, acting independently, were practically powerless to ade- 
c^uately protect migratory birds. The advocates of that law urged 
its necessity, because the Federal Government could alone, it was 
said, furnish the needed protection. No such claim is made on 



GAME REFUGES. 11 

behalf of this legislation, or if it is, it is not well founded. The 
legislatures of all the Western States, so far as I am acquainted with 
their constitutional provisions, not only have authority to prohibit 
the taking of certain or all kinds of game, permanently or for a given 
period, or to regulate its taking as they see fit, but they also have 
authority to prescribe certain areas, few or many, large or small, 
anywhere within their boundaries on or off forest reserves, within 
which hunting and fishing may be absolutely prohibited, or within 
which the seasons for himting or fishing shall be different from the 
seasons in other parts of the State. 

The State which I have the honor to represent in Congress has 
repeatedly legislated in the establishment and maintenance of per- 
manent or temporary game sanctuaries. For many years the State 
made the killing of buffalo a felony, and wdiile the action was taken 
too late to save many, it did save in the northwestern part of the 
State the only herd of buffalo that survived in a wild state. For 
many years the State prohibited the killing of moose, and by so 
doing has created a moose herd which is probably larger now than 
it has been at any time in the last 30 years, possibly larger than it 
ever was, even before the white man came. 

In addition to protecting elk throughout the State generally by 
restricting the period of hunting and the number that one may kill, 
the State nearly 10 3'ears ago created a refuge for elk and other 
classes of big game south of the Yellowstone Park, covering an area 
as large as some States m the Union. Our game legislation and en- 
forcement has given us a herd of elk which partly summers in the 
Yellowstone Park, but wholly winters south of the park, variously 
estimated at from twenty to thirty-five thousand head. 

Mr. McLaughlin. In fixing the area of that refuge did the State 
include any part of the national forest ? 

Mr. MoNDELL. It is all in the national forest; all of our State 
refuges so far have been in national forests, because the national for- 
est is the natural game region. The natural game region is the 
mountains, and the national forests in our State are almost wholly 
on and in the mountams and the high country. The rough, broken, 
rocky, timbered country contains game. Even the very high areas 
near the timber line and above the timber line have some kinds of 
game. Around the peaks are the sheep and the goats, and lower 
clown the elk and deer. 

Mr. McLaughlin. Is the title to any of that same kind of land m 
the State ? 

Mr. MoNDELL. There are no lands of that kind in our State that 
are not in forest reserves. It is almost all pul)lic land. The game 
country is mostly within the forest reserves with us, and that is true 
of most of the States in which there are forest reserves. 

The State legislature has at various times prohibited, for varying 
periods, the taking of game of certain kinds in large areas in various 
parts of the State — notably the Big Horn Mountains — and thus cre- 
ated game sanctuaries. The last leo;islature had under consideration 
the creation of some six or more additional game preserves, but the 
matter was presented, I am told, so late in the session that it was 
impossil)le to secure action. The attitude of the people of our State 
is favorable to the proper preservation of game and always has been ; 
but, of course, our people want to know where these preserves are 



12 GAME REFUGES. 

to be and what they are to include, and all that sort of thing. We 
take a great deal of pride in our great elk herd and in our moose 
herd, which has grown in numbers so that it is already overflowing 
the only country in the State where moose thrive — that is, in the 
high mountain swampy region. 

Mr. McLaughlin. Has the State had any difnculty in describing 
the areas to be included Vvatliin the gaaie preserves, so that hunters 
may know exactly where the lines of the preserves are and not be 
subject to this difRculty that you speok of, namely, v^hasing the 
game from free land onto the preserves without knowing it, and so on ? 

Mr. MoNDELL. Our State, in the main, has created sanctuaries or 
preserves of considerable size. The boundaries of those sanctuaries 
or preserves are changed from time to time as conditions clnnge, 
and by making them of considerable size river, mountsdn. and v ater- 
shed boundaries can be utilized — natural boundaries, vvhich people 
recognize. Furthermore, the hunter is always under the same juris- 
diction; he may pass to a region where the provisions of law may 
be different, but he is under the same jurisdiction in or out of the 
preserve. If he violates the law, he is arrested by the same officers 
and tried by the same court. The jurisdiction does not change. 
The status of the territory may change, but the jurisdiction remains 
the same. 

THIS BILL NOT NECESSARY TO COOPERATION. 

It is not necessary to have Federal game preserves or infringe- 
ments by Federal upon State authority in order to secure cooperation 
between State and Federal authorities on forest reserves in the pro- 
tection of game. A forest ranger with authority to act as a State 
deputy game warden, which authority most of them have, can enforce 
the State law as effectively as he could the Federal statute and with 
much more certainty and less confusion and friction, because of the 
fact that the jurisdiction was the same — that of the State over the 
entire forest area. The State game preserves, to which I have re- 
ferred, in Wyoming are wholly upon and within forest reserves and 
the State game officers and the forest reserve officers, acting as State 
game officers, work in harmony in the care and preservation of game. 

In my State every forest ranger, I think, is a game warden. The 
State pays them a nominal sum — $1 a year I think it is — and they 
aid very materially in the enforcement of the State laws. As a 
matter of fact, we have gotten along very well, I am told, with the 
forest officials and have welcomed their assistance in that respect. 
They protect the game without any particular loss of time that 
might be required in their other work, because they are constantly 
on the reserves and constantly over the territory where the State 
game laws operate. 

Not only liave the States full authority to put in operation, under 
State control, a system of game refuges; not only have some of the 
States already adopted this policy, but State legislatures being 
familiar with every feature and factor of the situation, are capable 
of legislating more wisely on the subject than the President, depend- 
ing on the advice of some one, could do. In any event, no policy of 
fixed and permanent areas within which hunting should be entirely 



GAME REFUGES. 13 

prohibited would be a wise one. And that is one of the strongest ob- 
jections to the bill. 

The location and boundaries of such areas would need, in order to 
serve the purposes for which established, to be modified from time 
to time, and in addition closed seasons or complete prohibition of 
hunting certain classes of game must from time to time be provided 
for over much larger areas than should be included in any permanent 
game refuge. At times it should cover an entire State, as has been 
provided in Wyoming in the case of moose. 

From time to time, in the case of elk, it should cover vast areas, 
and. the same is true in the case of antelope, in order to save, if pos- 
sible, some of the remaining antelope. 

Under certain conditions a shortening of the open season and a 
limitation of the bag extending over all or a large portion of a State 
is a much better form of game preservation than the permanent 
maintenance of small areas in which no hunting is allowed. The 
State, in full authority in all these matters, is in position to handle the 
question of game preservation very much better than it could be 
handled under conflicting attempted State and Federal jurisdiction. 

CLAIM THAT STATES WILL NOT ACT. 

But, it is argued that the States will not care for and preserve 
game, and the story of the passing of the buffalo is cited. Anyone 
who knows anything about the habits of the buffalo knows that its 
passing, in the face of on-coming and spreading civilization, was 
inevitable. They can not be preserved, except in comparatively 
small herds under conditions of semidomestication, except possibly a 
few m a wild state m a great wilderness region, hke that of northwest 
Wyoming, mcluding the Yellowstone Park and vicinity. 

That is the only place where we have maintamed a wild buffalo 
herd and that is possibly the only place in the United States where it 
could be done, because the mountain area there is large and the 
territory is comparatively easily protected; but ordinarily buffalo 
would never be preserved in one of these game preserves. The 
buffalo is an animal that travels far if allowed to, and must generally 
be held under fence. The buffalo had to go with the coming of 
civilization, because civihzation brought with it animals worth much 
more to man; animals which produced mucli more, considering the 
grass they consumed. A highly developed beef animal produces 
infinitely better meat, and more of it, for every pound of food he 
eats, and can be handled so as to utihze grasses more economically 
than the buffalo. The buffalo never did utilize grasses economically. 
Even when most plentiful in tluit western country they trampled 
back and forth and destroyed a great deal more grass than they 
ever ate. 

The antelope can not be preserved in the refuges tliat are proposed 
for they are all more or less timbered, and the antelope shuns timber. 
You can not get him anywhere near a place having timber or brush 
on it. 

The larger wild animals always decrease m great numbers diu'ing 
the pioneer and early development period of a country. They have 
a way of commg back later, particularly the deer, as the boundaries 
of settlements become fixed and the rougher country less distiu'])ed, 



14 GAME EEFUGES. 

as the professional hunter decreases in number and orderly condi- 
tions are established. The wonderful increase in game in the State 
of Maine has been cited before this committee as an argument for 
this bill. It is the strongest argument against it. The protection 
and the increase of game in Pennsylvania has been referred to. 
The States will and do — those of them who have natural game 
country within their borders — gradually, sometimes, but certamly 
in all cases, develop a healthy pubhc sentiment in favor of game 
preservation, resultmg in a reasonable increase of game within their 
borders. I venture to say that the deer, which at one time no 
doubt became quite scarce, have for a number of years past been 
increasmg, or at least not decreasmg in numbers, in the wooded 
parts of Wisconsin and Minnesota. 

And 1 think that is also true in Michigan, and our friend, Mr. 
McLaughlin, knows more about that than I do. 

But assuming for the sake of argument that the people of a State 
were not specially interested in the protection and increase of game 
within their borders — it is a matter over which they have jurisdic- 
tion, according to the courts — why should the Federal Government 
attempt to invade a domain over wliichit has no jurisdiction? There 
are many of the States which have not always given that protection to 
human life as against mob violence which we think they should, but 
no one is using that as an argument in favor of the extension of Fed- 
eral police authority. There are several classes of people who favor 
this legislation. There are naturalists and game lovers who, never 
having considered questions of government and jurisdiction and who 
being impatient because the States do not do everything that they 
would like to have them do at once, forthwith seek this short-cut of 
Federal authority. 

That has got to be fashionable in these days, not only in this regard 
but as to other matters. A man gets the impression that a certain 
community does not travel as fast as he believes it ought to travel in 
matters within the jurisdiction of the State and the jurisdiction of the 
local authorities, and he comes down here to Congress and asks his 
Member of Congress to introduce a bill fixing it all up through Federal 
legislation. He says "Let the strong hand of the Federal Govern- 
ment do it." 

There are good people who, being interested in the preservation of 
game, favor on general principles the plans proposed in the name of 
game preservation without indorsing or even taking the trouble to 
investigate the details of the plan. That is true of some people in my 
State. They have indorsed this Hornaday plan without knowing 
fully what it means. They are in favor of game preservation. As I 
told you the other day, I have never received a communication from 
a citizen of my State asking me to oppose this bill, but I have received 
a number of communications asking me to support it, mostly from 
people who do not fully understand what its effect would be, but sup- 
port it because they are told it means some help in game preserva- 
tion; and, second, and more important, that it is claimed that the 
Federal Government will appropriate for taking care of the game and 
save us the expense. Some people seem to be willing to sell their 
State birthright for a very small mess of Federal pottage. 

There are Federal officials having to do with forest reserves and 
matters pertaining to game life who are naturally anxious to broaden 



GAME REFUGES. 15 

and extend their authority and control. They woidd never trouble 
themselves over questions of jurisdiction. They naturally consider 
Federal control the best. There are certain clubs organized of pro- 
fessional or amateur hunters who want to see game increased and who 
do not always approve State game regulations who give their assent 
with or without information to any proposal of the extension of 
Federal authority. 

I know of a few gentlemen who are very anxious for this legisla- 
tion because they have not been entirely happy over the very strict 
regulation m regard to elk and other hunting in my State. They 
actually have the idea that in some way this bill gives the Federal 
Government control over hunting in the States, which it does not 
purport to do at all, except that it attempts to prohibit it in certain 
regions. 

Those who favor this legislation and understand it do not ordi- 
narily, publicly, proclaim their reasons, or at least all of them, for 
advocating the legislation. Many such people desire to break down 
and destroy completely State jurisdiction and control over game, at 
least within forest reserves. They know this bill will not do that. 
They know perfect!}^ well that if only small areas are included in 
these so-called sanctuaries, as the Federal authority will have no 
control over the game as it passes from the sanctuaries, their estab- 
lisliment will have little effect on increasing the amount of game in 
a region which does not have wise State law^s enforced by healthy 
public opmion. Such people ought to know that the friction caused 
by conflict of Federal and State authority around and in these refuges 
will tend to weaken rather than strengthen public sentiment in the 
localities in favor of game preservation. Out of this condition, unless 
the courts intervene, a general extension of the Federal authority is 
expected by a considerable number of people. 

I want to emphasize that fact. Attention was called the other 
day to the fact that in the State of Montana, in parts of which there 
never has been a very good pu])lic sentiment in the matter of game 
preservation, a lot of elk that had strayed from the Yellowstone Park 
were slaughtered. Yellowstone Park is the largest of our game sanc- 
tuaries, but the moment the game went beyond the sanctuary it 
was under State law. Now, you might increase that sanctuary a 
few miles by taking in some forest reserves adjacent to it, but you 
could not extend it over all of the State of Montana; you could not 
extend it over all the country in the forest reserve, because if you 
did you would be violating the plain intent, or the proclaimed intent 
of the bill, and if you did not so extend it over all of the country in 
which there was game you would not protect the game, but, perhaps, 
tend to create a sentiment that would give it less protection than 
now when it ranged outside the sanctuaries. 

^Ir. Jacoway. Your argument, then, is that the States can control 
all of the territory within the State, whereas the Federal Government 
can only control that part which it owns ? 

Mr. MoxDELL. If the Federal Government can control at all it can 
control only as a ])roprietor and through a prohibition against what 
it alleges to be a trespass. That is the only the(U-y on which you can 
establish these preserves at all or maintain them. You can not 
maintain them on any theory that the Federal Government has any 
control over the game, because the game is not the Government's 



16 GAME KEFUGES. 

property. The Federal Government may go to the hmit in the 
protection of its own property but it can not legislate for the pro- 
tection of the game, because that is not its property. If it does it at 
all it does it entirely by indirection. 

In conclusion, Mr. Chairman, the proposed legislation deals with a 
subject over which Congress has no constitutional authority. It 
attempts to do by indirection what it is generally conceded could 
not be done by direction. It proposes a plan which would dot 
western Commonwealths with Federal game principalities and would 
result in endless conflict of authority. It would subject the citizens 
of certain western States to the danger of being arrested and taken 
hundreds of miles from their homes to be tried and sentenced by a 
Federal court for trifling offenses. It would involve largely increased 
expenditures by the Federal Government. 

If game preservation is sought, it should be sought through proper, 
legitimate, and constitutional channels. The States are clothed 
with complete authority to protect game in the manner proposed 
by this bill, or in any other way. The States have and are showing 
a growing disposition and inclination for game preservation within 
reason, as witness the States of Maine, Pennsylvania, and others, 
and in the region which this bill affects, the States of Colorado and 
Wyoming. The bill is a bold and brazen attempt to invade State 
jurisdiction in a matter in which the States have exclusive juris- 
diction and in regard to which they are acting with ever-increasing 
foresight and care. 

There is one statement in the bill that I have not referred to. 
because I did not think it ought to be dignified by an argument, 
That is the proposition contained in the stump speech of the last 
session, that all of this is for the purpose of increasing the supply of 
food — the meat supply of the country. Within certain limits game 
can be iraintaind in the rocky, rougii, and broken country wuere 
domestic animals will not or can not go. The mainten^ince of that 
game is a clear gain, because they do consume grasses and snrubbery 
that domestic ani'rals will not reach. But as soon as you leave that 
kind of a region, then any increase of wild game in a country that ir ay 
be advantageously grazed by domestic animals is not an increase in 
the iood supply of the country, but results in a decrease of the food 
supply of tile country to the extent that game consumes forage that 
would otherwise be consumed by domestic animals, such as sheep 
and cattle. Sucli annuals produce much more in meat and other 
products than any sort of wild game produces in proportion to the 
vegetation they consume. Domestic animals are the final product 
of centuries of effort in producuig the animals that give the greatest 
and most satisfactory returns for what they receive in the way of 
sustenance. Therefore, the increase of game in these game pre- 
serves beyond a certain point would not result in an increase of the 
meat supply, but an actual decrease. This illustrates the fallacy of 
some of the arguments that are advanced in support of the legislation. 
In our State we have an elk herd estimated at from 20,000 to 35,000 
head: we do not know just how many there are. From one-third to 
a half of them are in the Yellowstone Park during the summer, the 
balance of them south of the Park; all of them are in the State south 
of the park in the winter time, the country being too high and snowy 
for them in the Yellowstone Park during that season. That herd, 



GAME REFUGES. 17 

or rt large part of it, is in territory that could not be advantageously 
utilized for live stock, although it does encroach somewhat upon 
territory that might be used by grazing animals. But our people 
want to maintain that herd as large as it can be reasonably main- 
tained in that territory because tney take great pri(h^ in it. " But it 
would he very easy to extend the elk herd in Wyoming over territory 
that is occupied by grazing animals, although I do not assume that 
is wliat is intended or proposed by this bill. 

Now, gentlemen, do not lose sight of this: The forest reserves of 
the country are or may be completely grazed. You see in this 
eastern country a great deal of rough, brushy country which is not 
utihzed for grazing purposes. That sort of thing' is practically 
unknown in our country. Under the conditions that we have, 
practically everything in the way of feed is utilized, and the stock 
grazes over all of these reserves except the highest and best parts 
of them. 

I am not opposing this legislation on the tlieory that it would inter- 
fere with live stock; but it could very easily be administered in a way 
to seriously interfere with the live stock industry, because you can 
only increase game beyond a certain point by utilizing grasses and 
herbage that would otherwise be used by sheep and cattle. The best 
way to preserve game in the western country is to preserve it under the 
jurisdiction that has control of it. It will be best preserved in that 
way, and it will be best for everybody that it be preserved in that way. 
In most of the States a very reasonable amount of effort will result in 
the establishment of all the reserves and refuges that ought to be 
established. As a matter of fact, our experience is that in the main 
we will probably do much better by shortening the hunting or open 
season in all, or a large portion, of the State from time to time ratlier 
than to have certain places where they are not hunted at all at any 
time. These larger animals are not hunted except for from two 
weeks to six weeks in the faU, and by shortening the season to two 
weeks, or occasionally closing it entirel}^ for a series of j^ears, you 
accomplish the result of allowing your game to increase without the 
danger of subjecting your citizens to danger of violation of tha law 
relating to a particular territory, the boundaries of which may not be 
entirely familiar to them. 

Gentlemen of the committee, I thank you very much for your 
attention. 

STATEMENT OF MR. R. W. WILLIAMS, ASSISTANT TO THE 
SOLICITOR, DEPARTMENT OF AGRICULTURE. 

Mr. Williams. Mr. Chairman and gentlemen of the committee, I 
will endeavor to confine my remarks to the ([uestion of the constitu- 
tionality of this bill. With the polic\' of the bill the committee will 
deal as it weighs the relative considerations 

Mr. Jacoway (interposing). I do not know that I state the position 
of the other members of the committee, but as far as I am concerned— 
and if the other members do not agree with me they can so state — I 
believe that all of us recognize that tlie title to wild game is in the 
State, and as far as I am concerned I would like to have you address 

53985—16 2 



18 GAME REFUGES. 

your argument solely to the proposition of how the Federal Govern- 
ment can control this matter and make these sanctuaries a success. 

Mr. Williams. I will do that. First, however, let me premise by 
saymg that this is not novel legislation. Congress has previously 
enacted laws for special game sanctuaries in the national forests. 
For instance, the Wichita game refuge was established by Congress 
January 24, 1905. (33 Stat., 614.) The language of that act is very 
similar to the language of the bill now pending before the committee. 
It authorized the President of the United States to designate such 
areas in the Wichita Forest Reserve as should, in his opinion, be set 
aside for the protection of game animals and birds and be recognized 
as a breeding place therefor. The act then gives power to the Secre- 
tary of Agriculture to make regulations to carry out the objects and 
purposes of the act. Similarly the Grand Canyon game refuge was 
created by act of June 29, 1906. (34 Stat., 607.)' That act follows the 
Wichita game refuge act almost literally. Then there is the act of 
June 28, 1906. The President of the United States having previously 
withdrawn areas of public lands for the use of the Department of 
Agriculture as breeding grounds for native birds, Congress passed this 
act, the act of June 28, 1906. (34 Stat., 536.) It is now section 84 
of the Penal Code. That act, in substance, is this: 

That it shall be imlawtul for any person to hunt. trap, capture, willfully dislurb, or 
kill any bird of any kind whatever or take the eggs of such birds on any lands of the 
United States vdiich have been set apart or reserved as breeding grounds for birds by 
any law, proclamaiion, or Executive order, except under such rules and regulations as 
may be prescribed from time to time by the Secretary of Agriculture. 

Then follows section 2 that provides the penalties for any killing of 
birds and the taking of their eggs on those reservations that were 
created by Executive order of the President, Congress by this act of 
1906 recognizing the right of the President to withdraw public lands 
for a public purpose, namely, the protection of game and birds. 
There may be some doubt in the minds of some people as to whether 
the protection of game and birds is a public purpose, but Congress 
has dealt with it as such for so long a time that I doubt very much 
if you could ever presuade any court that it is not now a public 
purpose. 

Mr. Jacoway. Have any of these acts ever been tested in the 
courts ? 

Mr. Williams. No, sir; but they have been enforced. The act of 
June 28, 1906, prohibiting the kiUing of birds on reservations has 
been enforced, and that question has not been raised. 

The issue on this bill is not who owns the birds or the game. It is 
a mooted question whether migratory birds belong to the State or 
to the United States, and the migratory bird law is founded upon an 
entirely different theory from this bill before the committee. The 
Supreme Court, as Mr. Mondell has said, has set the migratory bird 
case for rehearing, after having had it under consideration since 
October 16, last, but a decision upon the migratory bird law, I ven- 
ture to say, will throw no light upon the issue involved in this bill 
before the committee. The bill before the committee is predicated 
not upon the power of the Federal Government to protect game as 
such, but upon the power of the Federal Government to dispose of 
and make all needful rules and regulations respecting the territory 
and other property belonging to the United States. That is the con- 



GAME REFUGES. 19 

stitutional power conferred upon Congress. The word ''territory" 
in the constitutional provision has been stated by the Supreme Court 
to mean land. I am not going to cite the decisions of the Supreme 
Court at any length, because I wish to call the committee's attention 
to two opinions of Attorney General Knox in which he considered 
this question exhaustively from beginning to end, and this direct 
question was before him at the time. In his opinion of November 
29, 1901, to the President, the issue, as stated by him, was this: 

Mr. Clifford Fincliet. of the Bureau of Forestry, in his letter to you accompauying 
the above note, reciuests the submission to the Attorney General of the question, in 
substance, whether for the preservation of the big game of tlie West the Secretary of 
the Interior has power fo prohibit, by rules and regulations, the killing of su<-h game 
within the national -forest reserves — in other words, whether he can make such reserves 
the refuges for game, in order to secure its preservation — and he suggests the incpury 
whether the act of June 4, 1897 (30 Stat., 11, 34), confers this power, as it does the 
power to make rules and regulations in many other respects. 

The question before the Attorney General in that case was whether 
the Secretary of the Interior had the authority under the act of June 
4, 1897, which is the forest-administrative act, to forbid huntmg in 
the national forests. The Attorney General considered the question 
exhaustively 

Mr. Reilly (mterposing) . Does he mention the Race Horse case or 
any of those cases 1 

Mr. Williams. I do not thmk he does, but I shall dispose of the 
Race Horse case. I think I can convincingly show the committee 
that the Race Horse case has nothing to do with this issue at all. 

The Attorney General came to the conclusion in his opinion that 
the Secretary of the Interior had no such power, because Congress 
had not given it to him, but he distinctly asserts the right of Congress 
to give him the power. Quoting from this opinion: 

It is true that the United States has the absolute title to and ownership of all the 
public domain, including the forest reservations; and ecjually true that this title and 
ownership carry with them the right of either absolute or partial exclusion from such 
lands and the right to permit intrusion thereon for such purposes and upon such 
terms as the owner may prescri])e. And I have no doubt that, as incident to such 
ownership. Congress has the i>ower, if it .so chooses, to absolutely jjrohiint the intrusion 
of the pu])lic into any of the public lands, or to prohibit it for certain purposes, as 
for cultivation, mining, cutting timber, hunting, fishing, etc. Such right of control 
and exclusion is incident to the ovvnershij) and is a part of that whicli the owner owns 
with the land. But it does not follow from this that the Secretary of the Interior 
may exercise this right of control which resides in the (Tovernment and may be exer- 
cised by Congress. 

He reiterates that again m the closing paragraph in the opinion, 
where he says: 

It is with regret that I reach this conclusion, as I woidd be glad to find authority 
for the intervention by the Secretary for the preservation of what is left of the game 
from wanton or unnecessary destruction, but it would seem that whatever is done in 
that direction must be done by Congress, which alone has the power. 

Mr. Attorney General Knox, in an opinion a year after to Hon. 
John F. Lacev, who was then, I believe, th<^ chairman of the Public 
Lands Committee, went into the question somewhat more exhaus- 
tively. In that opinion h(^ had some other issues also befor(^ him. 
That opinion of Attorney General Knox is reported in House Docu- 
ment, No. 321', volume 70, Fifty-seventh Congress, first session. It 
reviews the pertinent decisions of the Supreme Court upon like issues 
involved in this very bill. He concludes, as ho concluded in his 



20 GAME REFUGES. 

former opinion, that there is no doubt in the workl of the power of 
Congress to control the hinds that belong to the Federal Government 
in any way it sees fit, not as a monarch — by which I assume he 
means that the United States, or Congress, could not provide any 
special privileges in any special class of people — but as a trustee for 
the benefit of all the people alike. 

I would urge the committee, since this is a very important question, 
to examine those opinions of Attorney General Knox, who, himself, 
I understand, was at that time, if not now, very much interested in 
the protection of game. As stated, he reluctantly came to the con- 
clusion that the Secretary of the Interior did not have the authority 
to close the national forests to hunting, but that Congress had; and 
in this second opinion he maps out, having been requested to do so, 
the general principles undei lying a bill for the protection of game on 
the national forests. Those suggestions of the Attorney General 
are in substance followed in this bill, although I may say that at the 
time the bill was prepared I understand that this opinion was not 
read in connection with it. 

Mr. McLaughlin. What do you mean by that; the opinion had 
been rendered ? 

Mr. Williams. Yes, sir; but I am not informed as to whether the 
Attorney General's opinion was looked to in the drafting of this bill, 
but coincide!! tally it follows pretty closely along the lines suggested 
by the Attorney General for a bill of this kind. 

Mr. Jacoway. You can leave those pamphlets 'i 

Mr. Williams. I will leave this copy of the Opinion of the Attorney 
General, Mr. Chairman. I would request the committee to procure 
the House report, which contains the other, as heretofore indicated. 

Mr, Jacoway. Is that what you have in your hand ? 

Mr. Williams. No, sir. This is a pamphlet containing rules and 
regulations published some years ago by the Interior Department 
when they administered the forests and they quote the opinion of the 
Attorney General in the pamphlet. 

Mr. McLaughlin. That contains only the one opinion ? 

Mr. Williams. Yes, sir. The first opinion is reported in Twenty- 
third Opinions of the Attorneys General, page 589. 

Mr. McLaughlin. And the other one is a House document? 

Mr. Williams. Yes, sir. 

I want to say that Mr. Mondell is absolutely correct when he states 
that the States have authority over the protection of game. That 
does not give the State a right to say that you may go upon the land 
of John Smith and hunt game,- for John Smith may say, "I am not 
going to let you come upon my land to hunt game. I want the birds 
here; I want them either ornamentally or I want them because they 
are insectivorous birds and they assist me in my agricultural endeav- 
ors." A State can not force any man to permit another to go upon 
his land and hunt. So the United States, as has been decided in 
abundant decisions, being the owner of the land, not only has the 
right of a private proprietor, but it has more than a private proprietor; 
it may legislate for the protection of its land. Otherw^ise it would be 
wholly at the mercy of the State legislatures to protect its land. Now, 
that does not mean that Congress can pass a law to make it a crime 
against the United States for a man to commit murder on the public 
land; not by any means. It has not the right to do that, but it has 



GAME REFUGES. 21 

the right to so control the huuis that helong to the United States as to 
exclude people therefrom for whatever Congress may see fit. They 
have done it in regard to the protection of the public timber, water 
flows, and things of that nature. 

I might add here also that Congress has several times, in legislating 
for the national parks and in creating a specific national park, 
authorized the Secretary of the Interior to make regulations which 
will preserve the game and birds within the parks. 

Mr. MoxDELi,. Will you permit me to interrupt you right there? 

Mr. Williams. Certainly. 

Mr. MoNDELL. I want to call your attention to the fact, with 
which, of course, you are familiar, that in the case of national parks 
the States have ceded their jurisdiction. 

Mr. Williams. Let me say to Mr. Mondell I think that is c^uite 
doubtful. 

Mr. Mondell. It is not only not doubtful, but absolutely true. 
The State of Wyoming ceded jurisdiction over the lands within the 
Yellowstone Park and the other States have ceded juris(Uctioii to 
the Federal Government over the lands contained in the national 
parks as soon as that legislation could be secured from the legisla- 
tures after the parks were established. We passed a biU the other 
day by unanimous consent accepting the act of the State of Oregon 
ceding jurisdiction over Crater Lake National Park. A bill has re- 
cently been reported accepting the act of the State of Washington 
ceding jurisdiction over Momit Rainier National Park. Montana has 
ceded jurisdiction over Glacier National Park. The cession of juris- 
diction follows the establishment of a national park. In the case of 
the Rocky Mountain National Park in Colorado the legislature ceded 
jurisdiction before the park was established and it was accepted in 
the biU creating the park. 

Mr. Jacoway. That is a very important c[uestion, I think. 

Mr. Mondell. They are all established with the understanding 
that there will be a cession of jurisdiction and action generally c[uickly 
follows estabhshment. 

Mr. Jacoway. You stated a while ago that you were absolutely 
certain that all the States in which national parks were located had 
ceded or surrendered to the Federal Government their rights. Is that 
correct ? 

Mr. Mondell. Well, I think perhaps the}- have not all done so, 
but in the matter of the more important parks that has been done or 
is in process of being done. Everyone realizes that such cession is 
essential to the control the Nation assumes over the mitional parks. 
In creatmg a new national park in California I called attention hi the 
House a few days ago to the fact that section 2 of the act would be 
absolutely inoperativci until the State ceded its jurisdiction, and Mr. 
Mann concurred in that, and Judge Raker said that the cession of 
jurisdiction would foUow, tiiat the wState could not cede jurisdiction 
until the logislatur(> had met and the Federal Government had de- 
scribed the territory. 

Dr. IIoRXADAY. Just a word. Only two weeks ago I put to Dr. 
Palmer, of the Biological Survey, who follows this matter of the 
national parks closely, the question: "Is it true that all the States 
have ceded to the National Government jurisdiction over the national 
parks that have been created up to this time?" He said, "Up to 



22 GAME EEFUGES. 

this timo only 3 of the States had done so out of 16." I said: 
"What is thc'longest period that has elapsed before that cession has 
been made?" He said, "As nearly as I can recall, six years, in one 
case. Only 3 out of 16 have actually performed that act." 

Mr. MoNDELL. Where we have any legislation asserting control 
over the game, the cession has been made. 

Mr. Williams. My understanding, with all deference to Mr. 
Mondell, is as Dr. Hornaday has stated; but that is wholly immate- 
rial. There is another very serious constitutional question which is 
raised by that, namely, whether a State can cede to the Federal 
Government its police power. The only exclusive jurisdiction that 
the United States has or can acquire over any land inside of a State 
that I know of is the constitutional power of exclusive jurisdiction 
over such land as is purchased with the consent of the State for its 
magazines, forts, arsenals, dock yards, and other needful buildings. 
There is therefore the constitutional question involved as to 
whether the State can confer upon Congress the right to protect 
game. The Supreme Court of the State of Washington has very 
recently held that it could not do so. (State v. Towessnute, 154 
Pac, 805.) But that is beside the mark. 

No States have ceded any jurisdiction to Congress to set aside the 
national forests or to regulate grazing and various things on the 
national forests, and it never has been claimed, with any confidence, 
that such a cession was necessary. 

I will refer here to a decision by Federal Judge Dietrich, of the dis- 
trict of Idaho (United States v. Regginelh, 182 Fed., 675), in which 
he held in an exhaustive opinion and one full of good learning that 
a regulation of the Secretary of Agriculture prohibiting the locator 
of a mining claim from selling liquor or conducting a saloon on the 
mining claim within the boundaries of the national forest was within 
the power of the Secretary of Agriculture to make, and that the 
locator of the mine had no right to sell liquor thereon, although it 
might be perfectly legal elsewhere in the State to sell the liquor. 

Mr. Jacoway. Is not that under the theory that the fee to the 
mine always rests in the Federal Government ? 

Mr. Williams. Yes, sir; I am merely talking now about Congress 
regulathig various things upon lands that belong to the United 
States. That is true. In that case he decided that the lands be- 
longed to the Government, because the ultimate fee, the reversion- 
ary interest in this claim, was still in the United States, and as long 
as' it was the locator of the mine could do nothmg upon that land 
if the Government said he could not, except to develop it as a mine, 
thereby holding that the Congress could regulate the occupancy and 
use of even a subsisting mining claim in a national forest and pro- 
hibit the sale of liquor thereon if it saw fit, even though the sale of 
liquor elsewhere in the State was perfectly legal. 

The organic act for the creation of the national forests has been 
held by the vSupreme Court to be constitutional in the case of Fred 
Light V. The United States (220 U. S., 523), where the Supreme 
Court, in sustaining the power of the Secretary of Agriculture to 
make regulations forbidding a person to permit his cattle to drift 
over upon the forest, said — I will merely give the substance of the 
decision on this question: 



GAME REFUGES. 23 

The United States can prohil>it absolutely or fix the terms on which its i>roperty 
may be used, and can withhold or reserve the land iudefinitely, and this without 
the consent of the Slate in which it is situated. 

The confusion that arises in the consideration of the question 
involved in this bill now before the committee grows out of the Race 
Horse case and the Geer case. I should like to state to the com- 
mittee very briefly just what those cases uivolve. 

Mr. Jacowav. It constitutes who shall exercise jurisdiction over a 
crime or misder.ieanor ^ 

Mr. Williams. That the State may regulate the hunting of game. 

Mr. Jacoway. Both of those cases were not upon that point ^ 

Mr. Williams. Yes, sir. That does not mean that the State can 
give a man the right to go upon your land and hunt game. 

Mr. MoNDELL. Has anyone contended for any such right anywhere 
at any time ? 

Mr. Williams. Such is the effect of claims that have been made. 

Mr. MoNDELL. You say that it does not give the State the right 
to allow people to go on land contrary to the will of the owners. No 
one has contended anywhere at any time that the State had any 
such right. That is not a question involved. 

Mr. Williams. How can you contend, then, that the State has 
the right to put people upon the Federal lands i 

Mr. MoxDELL. Nobod}^ has suggested that the State has that right 
on Federal lands. 

Mr. Williams. I understand you to say that Congress has hot the 
right to close these areas and prohibit people from hunting on them, 
and that this bill proposes to do so. 

Mr. MoNDELL. That is a very different proposition. They are 
asserting that the Secretary of Agriculture claims that the State has 
the right to send people onto the land 'I 

Mr. Williams. I did not mean to say that. 

Mr. Mondell. You said that two or three times. 

Mr. Williams. That is the inevitable result of the clami that is 
made. If you say that the Federal Government has not the right to 
prohibit people going on Federal land to hunt game tlien it must 
follow that they have the right to go on there to hunt game. Is not 
that the inevitable conclusion ? It would certainly seem so' to me. 

Mr. Jacoway. You stated a while ago, as near as I can use your ex- 
act language, ''I concede the position taken by Mr. MondeU in which 
he asserts that the States have complete jurisdiction over the game of 
the State." 

Mr. Williams. The protection of the game of the State; that is abso- 
lutely true. 

Mr. Jacoway. That is what you meant ^ 

Mr. Williams. Yes, sir. 

Mr. Jacoway. Then, in order to carry out the provisions of this bill, 
as I understand, the only way you would ^et control is for the Govern- 
ment to say, ''This dommion here is Federal Government land, and 
we will prohibit trespass upon it, without any intention whatever to 
exercise any jurisdiction over that which the State now owns, to wit, 
the game." Is that your opinion ? 

Mr. Williams. If you mean that the fee simple relates to the 
land- 
Mr. Jacoway. No; I am talking about game. 



24 GAME REFUGES. 

Mr. Williams. Yes 



Mr. Jacoway. If that is so, do you concede that the Federal Gov- 
ernment in attempting to control these sanctuaries is doing something 
indirectly that it can not do directly ? 

Mr. Williams. No; I do not concede that at all. I will tell you 
why. When I say that the State has complete jurisdiction over the 
protection of game I mean that the State can prescribe the seasons 
in which the game may be killed or may not be killed within the 
borders of the State, including the land of the United States. It may 
say, "This is the open season" and "This is the closed season," and 
nobody has the right to kill game contrary to the seasons. 

Ml'. Reilly. The State regulations might say that you could kill 
game on all the public land in July and the United States might come 
along and say, ''You can not kill it on this land." 

Mr. Williams. Absolutely. 

Mr. Reilly. The State has not a])solute control of the game ques- 
tion ? 

Mr. Williams. Yes, sir. 

Mr. Reilly. It is limited ? 

Mr. Williams. No, sir. 

Mr. Reilly. Wlien the United States does not stop it, that is all? 

Mr. Williams. Wlien the United States does not stop it, yes, sir; 
it has full control of the game, so far as prescribing the seasons, but 
it has not complete control over the game on your land in your State 
so as to say that a man may go upon your land in July and kill game 
wdien you say you do not want him to do so. 

Mr. Reilly. That is true. Your own State has control subject to 
the right of the individual ? 

Mr. Williams. That is the issue precisely. 

Mr. Reilly. The State also has control subject to the right of the 
United States to come in and say "You shall not hunt on these 
lands?" 

Mr. Williams. Exactly. 

Mr. Reilly. From your study of the case, is there any difference 
between the ownership of the individual and of the United vStates ? 

Mr. Williams. The only difference is that the ownership of the 
United States is more complete than the ownership of the individual, 
because Congress can legislate for the protection or for the adminis- 
tration of the public lands, while the individual proprietor is depend- 
ent upon the action of the legislature for protection of his lands 
from criminal trespass. 

Mr. Reilly. And that is where you and Mr. Mondell differ? 

Mr. Williams. Yes, sir. 

Mr. Reilly. Mr. Mondell claims that there is a limitation upon the 
United States that is not on the individual? 

Mr. Williams. As to game. 

Mr. Mondell. I do not think that I said there was a limitation 
on the OMmership of the Ignited States that was not on the individual, 
although that is true. It has been held by the courts, but not in 
matters affected by this bill, that the authority of the Federal 
Government, within certain lines, is broader than that of the individ- 
ual. The individual can prevent trespass and injury to his property 
under State law. He can compel a party to get otf or to remain off 
his land, but he can not prescribe the punishment for the trespass 



GAME REFUGES. 25 

if he goes on. Now, the Federal Government, the courts have said, 
may prescribe the punishment for trespass on or the injury of its 
property, but when the Federal Government provides punishment 
for the killing of game, it is not pro^•iding a punishment for the ])ro- 
tection of its property, it is attempting to legislate touching property 
of the people under the control of the State. 

Mr. Jacoway. Is it your position that the Federal Government 
has at all times the right to exercise this jurisdiction claimed by you, 
but that it is held in al)eyance until it sees proper to exercise it ? 

Mr. Williams. Exactly; and until Congress acts, of course, a man 
may go upon the public land and hunt just as they used to go on the 
public land and graze their cattle until Congress said, ''You must 
not do it, unless you comply with the regulations of the Secretary." 

Mr. Jacoway. In the grazing proposition the Government owned 
the land and the grass ? 

Mr. Williams. Yes, sir. 

Mr. Jacoway. But in this case it does not own the wild game? 

]\[r. Williams. I will not say that it does not own the wild migra- 
tory game, for this reason: As I tell you, that question is involved 
in the migratory-bird law at the present time, and whatever m}' 
individual opinion may be about that, I can say to you that there 
are a great many able lawyers all over this country who are of the 
opinion that the title to the wild mio;ratory game and birds is in the 
United States.1 So that is not a foreclosed question, and the Supreme 
Court evidently is very much in doubt about the question, because, 
after considering the matter for about five months, the}' have restored 
the case to the docket for reargument. 

Mr. Reilly. Do you not think you should qualify that statement 
b}' stating that the Government has absolute and complete control 
over the game within its hmits ? 

Mr. Williams. Every general statement necessarily must be some- 
what qualified, because there are always other considerations 

Mr. Reilly (interposing). Is it not true that the State has abso- 
lute control of the game within its own limits, and can legislate with 
regard to the game within its own territory ? 

Mr. Williams. That is the proposition, precisely, and that is what 
I mean to say. Of course, I do not mean to say that the right exists 
to permit B to go upon a private individual's land and hunt on that 
land whenever he sees fit, because the private individual may say he 
will not have B hunt on his land at all. I think that while the 
United States may exclude people from its land for the purpose of 
hunting game it can not confer upon an individual the right to hunt 
upon those lands at any time or in any manner prohibited by State 
law. The regulations issued under the statute of 1906. which I read 
to you, make it an offense to kill l)irds or take their eggs on Federal 
bird preserves created by Executive order. In that act there is a 

f)rovision that the Secretary of Agricidture may make rul(>s and regu- 
ations for the administration of those preserves, and the department 
has made a regiUation permitting the agents of the Department of 
Agriculture, and collaborators with the Department of Agricidture, 
to take birds on these preserves for the uses of the department, for 
scientific purposes, consistent with the laws of the State in which tlie 
preserve is situated. In other words, the Secr(^tarv does not claim 
that he has any right to say that a man may go ui)on a Federal birtl 



26 GAME REFUGES. 

preserve and kill woodcock if the State has said that woodcock shall 
not be killed for 10 years. 

Mr. Reilly. Then you. claim that the United States Government 
has the right to interfere only as to making the closed season longer 
and that it can not interfere with the open season at all ? 

Mr. Williams. That is it exactly. 

Mr. Reilly. I do not see any reason for that distinction. 

2dr. Williams. It is the same distinction that is made with regard 
to the private owner. He has the right to say that 3^011 may come 
upon his land and hunt for six months, even though the State has 
prescribed that you may hunt for nine months in the Stale. You 
would not have the right to go upon that man's land and hunt for 
more than six months if he so decreed, even though the State law 
permitted hunting for nine months. The public lands in these 
national' forests are the property of the United States in much the 
same sense that the property of an individual is his property, and the 
United States may regulate the disposition and the use of them in 
any way that it sees fit. 

Mr. Jacoway. You can carve out a smaller period, but you can not 
carve out a period greater than the whole period prescribed by the 
State. 

Mr. Williams. Exactly. If the State says that a man may hunt 
deer for six months in the year the owner of the land may say, ' ' I 
will let John Smith hunt deer on m^^ land for three months in the 
year." He has a perfect right to do that or he has the right to say, 
''I will not let him come here at all to hunt," or he has the right to 
say, "I wiU let him hunt on my land for the full six months." And 
that is all in the world that this bill claims and it is all the jurisdic- 
tion that the Federal Government is asserting in this bill. It is the 
same jurisdiction that is asserted, as I have cited to the committee, 
in previous acts of Congress. 

Mr. Reilly. Then your claim is that the bill is along the line of 
assisting the States in conserving the game or controlling it ? 

Mr. Williams. Yes, sir. Now, whether it is a wise thing for the 
Federal Government to do this or whether it ought to be left to the 
States to do this is another question. I agree with Mr. Mondell that 
any State in this Union can draw a ring around the public lands of 
the United States and make them a game sanctuary. Why ^ Not 
on any theory that the State has exclusive jurisdiction over that 
land for the protection of the game but on the theory that it has 
jurisdiction over the protection of game as such and it can forbid 
the shooting of game in any section of the State that it sees fit, on 
the public lands if it sees fit to do so; but that does not negative the 
power in Congress to say also, "You shall not hunt any game on 
certain designated areas of public lands." 

Mr. Jacoway. In your judgment could the State say it was going 
to prosecute you for trespassing on the public lands ? 

Mr. Williams. No; it would say, "We will prosecute you for kill- 
ing a bird." That is all. And 1 doubt not — I may be incorrect 
about it — that the Federal Government could go into the State courts 
and prosecute a man for trespass on the public lands if there was any^ 
State law forbidding him to trespass upon another's land. But, of 
course, those cases are always brought in the Federal courts. 



GAME REFUGES. 27 

Mr. Jacoway. That is one of the cases where there is a choice of 
two jurisdictions. 

Mr. Williams. Yes, sir. 

Mr. Jacoway. And there are lots of those cases. 

Mr. Williams. Yes. The State has the undouhted right to say 
that the game within the State shall he shot during certain periods 
of the year or that it shall not be shot during certain periods of the 
year or during several 3^ears, and such a law would be oi)erative over 
the public lands of the United States, and nobody can go m there to 
hunt otherwise than in accordance with those provisions. The Fed- 
eral Government may say that a man may go there, but that he 
shall not violate the State laws. Or it may say what any private 
individual has the right to say with regard to his land, " Yoii can not 
go on these lands to hunt, because we do not want any hunting on 
these lands." 

Mr. Reilly. The United States simply has the right to make that 
closed season closer ? 

Mr. Williams. It has the right to say that you shall not come on 
there to hunt at all at any season of the year. 

Mr. Reilly. It could also say, if the State permits hunting for 
six months, that a man can only hunt on the lands for three months? 

Mr. Williams. Yes, sir. 

^Ir. Reilly. In other words, the United States Government only 
has the right to make that closed season closer? 

^Ii\ Williams. Yes, sir; that is right. The Secretary of Agricul- 
ture in makmg rules and regulations under this bill, if it is enacted, 
may say that a person might go upon these sanctuaries in the forest, 
reserves to hunt for half of the period prescribed by the State law, 
and a man would have the right to go in there and hunt for that 
period and for no longer. I want to impress upon the committee 
again that I do not claim that Congress can say to anybody that they 
may go upon the public lands and hunt game during the closed 
season prescribed by the State law. To that extent the State law is 
supreme and there is no ciuestion about that. This bill does not 
attempt to do anything like that; if this bill should be passed our 
regulations will have to be fitted in with the State laws; we can not 
allow anything greater than the State laws allow, and that is the 
whole theory of this Federal regulation of the protection of game. 

Mr. McLaughlin. It is conceded, I believe, that the Federal 
Government has the right to do anything that is necessary for the 
protection of the national forests ? 

Mr. Williams. Yes, sir. 

Mr. McLaughlin. Or the public domain ? 

Mr. Williams. Yes, sir. 

Mr. McLaughlin. Would it be reasonable to say tliat the Gov- 
ernment ought to have the right to protect the game, that the game 
is just as much necessary for a proper park as trees and grass ? 

Mr. Williams. Absolutely so. 

Mr. Elliott. The general welfare ? 

Mr. Williams. Xo; the general welfare has nothing to do with 
it at all. 

Mr. Jacoway. Have you embodied in your remarks all that you 
want to sav ? 



28 GAME REFUGES. 

Mr. Williams. I think I have stated all that I desire to state to the 
committee. 

Mr. Jacoway. If not, we want you to go ahead, but we have some 
other gentlemen who desire to be heard. 

Mr. Williams. I merely want to add this in closing, that the 
Supreme Court of the United States has praeticallv ruled, in the 
Mid-West Oil decision (236 U. S., 459), upon the right of the Presi- 
dent to withdraw from entry under the public land laws certain 
areas of land for the purpose of protecting the birds on there. In 
other words, the Supreme Court has practically ruled upon the 
validity of the act of June 28, 1906, forbidding the kiUing of any 
birds on these lands of the United States set aside for the use of the 
Department of Agriculture. 

Mi\ Jacoway. Is not this the turning point in all of those cases: 
That the Government reserves the fee in those lands and that the 
fee never passes from the Federal Government to the lessees ? 

Mr. Williams. Absolutely, and it may control that fee. 

Mr. Jacoway. But the ownership to the birds and wild animals 
is in the States, according to your contention ? 

Mr. Williams. No ; all of the decisions of the courts say that such 
property as exists in wild things flying through the air is in the legisla- 
ture of the vState in trust for the benefit of the citizens of that State, 
and it may, under its police power, regulate the killing or capturing 
of them as it sees fit. 

There is no property question in game involved in this at all. This 
bill is not predicated upon any property in wild game being in the 
United States, but it is predicated upon the property in the public 
lands being in the United States, and it has the right, like an indi- 
vidual has the right, to say ''No one shall come upon these lands 
for certain specific purposes." But even the right of ownership of 
land is subject to the power of the State, to its power of eminent 
domain, the power to send officers of the law in there to stop riots and 
things of that kind. 

Those are necessary limitations upon the individual's right, but he 
may say that no man may go upon his land to hunt if he wants to do 
so. There are statutes in every State, I suppose, prohibiting people 
from going upon private land if the owner posts a notice forbidding 
trespass. But the idea of the fee being in the United States, as 
regards the public lands, really has no bearing upon the question of 
whether there is any property in the United States as to wild birds. 
Congress is not legislating about this thing on the theory that it has 
any right to legislate solely for the protection of the game as such, 
but it is on the theory that it has the right to control the lands of .the 
United States for such purposes as it sees fit, and that it has that 
power is so abundantly shown in the decisions of the Supreme Court 
that I do not see how the committee could come to any other con- 
clusion than that Congress has the right, not only that it is proposing 
to assert now, but that it has already actually asserted, as I pointed 
out in my opening remarks. 

I am very much obliged to the committee. 



GAME REFUGES. 29 

STATEMENT OF DR. WILLIAM T. HORNADAY. 

The Chairman. We will now hear from Dr. William T. Ilornaday, 
of New York. Doctor, won't you please state to the committee some- 
thing about your position, and the nature and extent of your interest 
in wild animals. 

Dr. HoRXxVDAY. With pleasure, Mr. Chairman. Officially I am the 
director of the New York Zoological Park, which is under the manage- 
ment of the New York Zoological Society. One of the declared 
objects of that society is the protection of our native animals, and 
during the whole of my 20 years in the service of the society I have 
been active m that work. For all that work, however, I receive no 
extra compensation. Even if the Chamberlain-Hayden bill should 
become a law, and 100 game santuaries were made by it, it would not 
benefit my personal fortunes by so much as the price of a good cigar. 
My Vanishmg Wild Life book was furnished to all Members of Con- 
gress in 1912, by the Zoological Society. 

The Chairman. As I understand it, in this partciular matter you 
are actmg for a number of philanthropic persons who desire the per- 
petuation of our wild life. 

Dr. HoRNADAY. Precisely. I particularly represent the 70 persons 
who have created what is known as the permanent wild life protection 
fund, and that fund is defraymg all the expenses of my efforts m 
behalf of the game sanctuary cause. It was that fund which made 
possible my trip westward last September and October, in the course 
of which I visited and lectured in every State west of the Great Plains 
except Nevada, which I was unable to reach. 

This proposal for game santuaries in national forests is by no means 
a new idea. No one can say who first thought of it, or who first pro- 
posed it. I thmk that the idea is as old as the first national forest. 
We do know that since 1902 several bills have been mtroduced in 
Congress to provide game refuges m national forests, and perhaps it 
is well to state why all of them have failed. In my opmion they failed 
to make progress because they were too brief, and too mdefinite. 
They left entirely too much to executive discretion; and more import- 
ant than all else, they failed to take into account the grazmg and 
agricultural mterests, and the mterests of the States concerned. 

In framing the bill now before you, the half dozen gentlemen con- 
cerned in it endeavored to avoid the mistakes of previous bills. 
They endeavored to be absolutely specific in practically everything, 
and provide for a clear understanding. They took care of the interests 
of the sheep and cattle owners, and they did it so well that instead 
of now opposing us, the sheep and cattle men are our friends. We 
provided tnat the governor of each State concerned should have an 
absolute check upon every sanctuary proposal, by which he can 
amply protect the interests of his State. 

In planning my own campaign for this cause, it at once became 
evident to me that this is largely a western proposition, because 
the bulk of the national forests are west of the Great Plains. It 
seemed to me that the question of "to be or not to be" is one to be 
decided by the people of the West; and it was because of that feeling 
that I finally spent seven weeks in a long and laborious trip westward, 



30 GAME EEFUGES. 

in which I met many representative men and women face to face. 
In each one of my 23 addresses I said : 

This is a question to be decided by the people of the West. Do you wish these 
game sanctuaries, or not? If you say that you do not, I, for one, will drop the whole 
matter instantly. 

Mr. Chairman, the most thoroughly representative people of the 
West have said that they do desire these sanctuaries. To save busy 
Members of Congress from being burdened by a vast number of 
letters requiring answers, I devised a new plan. The friends of this 
cause circulated cards stating the terms of this game sanctuary plan, 
and inviting declarations in writing of approval and support. I did 
not circulate those cards myself; not at all. I handed them out in 
bulk. Recently I have placed in the hands of all the Members of 
both Houses of Congress my red Bulletin No. 2, stating the whole 
case, and giving, State by State, the names and addresses of the 
representative men and women who believe that the Chamberlain- 
Hayden bill should be translated into statute law. 

The millions of people in the East who believe in game sanctuaries — 
and are making them just as fast as they can — have not been asked 
to come forward and rush this cause through without regard to the 
views of the people of the West. The support that I am now offering 
you in behalf of the Hayden bill is distinctly and almost wholly 
western support, from the States in which the largest national 
forests are located. 

Mr. Chairman and gentlemen, going back to the remarks of the 
gentleman from Wyoming, I am proud and thankful to say that the 
United States Government has done much in the setting aside of bird 
sanctuaries and game preserves for the preservation of wild life in this 
country; and up to this time we have yet to hear of a single case 
wherein the United States Government has been asked to undo any 
of those acts. 

It is quite true that a good many bird sanctuaries have been created, 
as Mr. Mondell has said. And what are they, and of what do they 
consist ? 

On one hand they consist of outlying islands on our seacoasts, unin- 
habited and unusable, and on the other hand, a very, very small 
number of interior lakes, the total number of which is exceedingly 
small, that constitute important restmg places and breedmg grounds 
for migratory wild fowl. Now, it may be that something calamitous 
will occur to the people of this Nation on account of the establishment 
of the wild-bird sanctuaries that have been established in this horrible, 
this nefarious way, but we await the arrival of such a catastrophe with 
entire complaisance. Any city that gives up any part of its public 
parks for commercial purposes would nowadays be considered on the 
decline, and the time never will come when the United States Govern- 
ment, or in my opinion, any State government, will be called upon to 
yield up to commercial purposes any one of its bird sanctuaries, or its 
national parks, or game preserves. 

I propose to treat this whole question whoUy as a matter of 
expediency. I am perfectly satisfied, and even delighted, with the 
presentation of our side of the case which Solicitor Williams has 
made. It seems to me to leave nothmg to be desired. The whole 
question hmges on whether or not the United States Government 



GAME REFUGES, 31 

may be penalized as an owner of public lands, any more than a 
private individual. 

We have assumed that the United States Government has as much 
right to own land, and as much right in the land that it owns, as any 
private individual. There is no man who for one moment will 
question the right of any individual in any State to inclose his land, 
either with a fence or line, and say, ''This is a game preserve, m 
w^hich no killuig shall be done." Mr. Williams has well pohited out 
to 3'ou the fact that the Government is not seeking to regulate the 
killhig of game in national parks. Gentlemen, the Hayden bill is a 
constructive proposition, and not a destructive proposition. If it 
were destructive, if it were m anv sense providing for the further 
slaughter of any game, I would not be here to-day. I am sick and 
tired of trymg to provide game to-day for sportsmen to go out en 
masse and slaughter to-morrow. I am seekmg to be the humble 
means of putting before Congress the wishes of the people of the 
West in regard to this matter. 

After 30 years of more or less constant devotion to the study of the 
interests of the wild life of our Nation, and to efforts to promote the 
interests of our wild life, not only for the people of to-day but for 
posterity, I am obliged to say that my information and my impres- 
sions regarding the status of big game at this moment, in all the 
States west of the Great Plains, and the impending future of that 
game, are entirely opposed to the impressions of the gentleman from 
Wyoming. 

Mr. Mondell says that the game is increasing in many of the Western 
States. Now, I have just completed a tour of all the States west of 
the Great Plains except the State of Nevada. I have talked with 
State game commissioners. State game wardens, State officials, 
members of sportsmen's clubs, hunters who are not members of 
sportsmen's clubs, and with friends of wild life everywhere. Gentle- 
men, let me assure you that the people of the West do not share 
Mr. Mondell's optimistic views regarding the status of game in the 
West. I can not point to a single State in which I was informed that 
game was increasing. I believe that the only instances in which big 
game in the West is really increasing on public lands are those in 
national parks and preserves. It is quite true that Wyonung has 
preserved the elk, but it has been solely tlii'ough the medium of a 
national park, which is a Federal game preserve. If it had not been 
for the Yellowstone National Park 

Mr. MoxDELL (interposing). Of course, we do not agree to that 
We deny the accuracy of that sort of statement. 

Dr. HoRNADAY. I know you do, but I am stating my point of view." 
I say to this committee that had it not been for the Yellowstone 
National Park as a Federal ^ame preserve and a breeding ground for 
elk, there would not be one living elk in Wyoming to-(hiy. I think I 
could submit to you, if it were necessary, the facts to bear out that 
assertion. What did Wyoming do with the Big 

Mr. MoxDELL (interposing). We still have elk in the Big Horn, and 
hi the Medicine Bow, which are from 200 to 400 miles away from the 
Yellowstone National Park. 

Dr. IloRXAUAY. I was just going to speak of the Big Horn. The 
big game of the Big Horn Mountains was absolutely exterminated, 



32 GAME REFUGES. 

and no elk remained there; and then what happened ? They brought 
in some elk from the Yellowstone National Park, and restocked it. 

Mr. MoNDELL. Not from the Yellowstone National Park, but from 
Jacksons Hole. 

Dr. HoRNADAY. Well, it was from the Yellowstone herd. I am 
glad you mentioned that. The Big Horn Mountains furnish one of my 
object lessons. The State of Wyoming permitted the extermination 
of the Big Horn elk, and there was nothing left there at all. That 
shows how well the State of Wyoming has preserved its wild game. 

Mr. MoNDELL. Mr. Hornaday, will you allow me to interject into 
your remarks a statement to the effect that I know as a matter of 
personal knowledge that the elk never were entirely exterminated 
from the Big Horn Mountains. 

Dr. Hornaday. Well, all I can say to that is that I was informed 
for years that no elk remained in the Big Horn Mountains. I never 
went there to see. I accepted the statements of men of Wyoming. 
Now, that is what happened. I think that even Mr. Monclell wul 
admit that the elk of the Big Horn Mountains were reduced practi- 
cally to the point of extermination. 

Mr. MoNDELL. The herd was very greatly reduced, as is usually 
the case in the first years of settlement of country like that, when 
everybody is carrying a rifle. It always happens that way. 

Dr. Hornaday. Now, that very same thing w^ould have happened 
to the elk of the Yellowstone National Park but for that national 
breeding ground in which those elk could bear and rear their young 
absolutely unmolested. Wliat happens when those Yellowstone elk 
go over into Idaho in the fall ? They are met with a fusilade of rifle 
shots as they struggle through the snow. I know an instance of a 
whole herd having been exterminated in two days. You have all 
heard of those that recently went north into Montana, and what 
happened when they got there. 

Now, that is the spirit of the West; and that is what is making all 
this trouble. The State legislatures alone can not cope with that 
spirit. The State legislatures, throughout the entire West, are largely 
under the influence of the men who hunt big game; and when it 
comes to enacting legislation for the protection of big game, the 
sportsmen go to the legislatures, in representative bodies, and say, 
for example, "No; we do not want you to put a 10-year closed sea- 
son on the big-horn sheep. We think there are enough big horn yet, 
and we can continue to hunt them." Those legislatures are very 
often afraid to act contrary to the suggestions of the sportsmen. 
That is perfectly understandable. The men of the West have come 
up with the feeling that the game will always last. For 40 years 
that was the feeling there — that there was so much game that it 
would always last. 

But let us come back to the State of Wyoming. I hunted sheep 
and elk in the Shoshone Mountains in 1889, and if I went there now 
I would not find elk or sheep within 50 miles of my old hunting- 
ground — to put it at a low figure. The people of Cody are lying 
awake nights, Mr. Mondell, trying to think of a way by which they 
can get elk around through the Thoroughfare country into the Sho- 
shone Mountains. I have had plenty of correspondence with the 
men of Cody who are wrestling with that problem. The country 



GAME REFUGES. 33 

there is almost destitute of big game. The hunters north of Cody 
have to go south of the Yellowstone National Park to hunt elk. 

Several men whom I know, and of whom I was one for four years, 
have been petitioning and bogging the legislature of Wyoming to 
give the remnant of the mountain sheep of that State a 5 or 10 
year close season, so that they will not become exterminated. Three 
years ago one of the best guides in the State of Wyoming, of the 
firm of Frost & Richards, was in my office, and we discussed the 
problem and the prospects of the mountain sheep in Wyoming. He 
said, ' ' If any of your friends want to hunt mountain sheep in Wyom- 
ing they had better be coming pretty soon." I said, "How many 
mountain sheep do you believe there are on grounds that can be 
hunted in the State of Wyoming to-day?" He said, "Well, there 
are not very many." I pressed him for a definite answer; I asked 
him to name a figure and finally he said, "I do not believe there 
are over 100." Now, that was a guide from Cody. 

Mr. MoNDELL. Mr. Frost was seeking a job. 

Dr. HoRNADAY. Up to tliis moment the State of Wyoming main- 
tains the right to hunt her pitiful amount of mountain sheep, and I 
fear the legislature wiU. maintain it until the last sheep is dead. 
Now, that is what it means to influence M^estern legislatures in these 
States. The State of Wasliington is doing the very same thing. 
Last year we chd persuade the Legislature of Montana to put a three- 
year closed season on mountain sheep and goats. Montana is now 
almost destitute of mciintain sheep and goats. 

Mr. MoNDELL. Dr. Hornaday, in view of what our State has done 
in the matter .^.f moose and elk, it can not be possible that the legisla- 
ture would not respond to any reasonable request for a close season on 
mountain sheep. I am not familiar with just the character of the re- 
quests that have been made, but I do know the frame of mind of the 
people of my State. 

Dr. Hornaday. I will say to the gentleman from Wyoming for his 
information that last winter and two years before that I sent to each 
member of the Legislature of Wyoming and to the governor of the 
State a special ])etition in behalf of the better protection of the 
mountain sheep by a long close season. I did that myself. I put 
the matter before a nund)er of sportsmen of Wyoming, particularly 
of Sheridan, and the association of sportsmen at Wolf, and the}- did 
the same thing, but all to no purpose. 

Mr. MoNDELL. That proposition has never come to Congress, of 
course. 

Dr. Hornaday. ^Ii-. Mondell has mentioned the moose of Wyo- 
ming. I am very glad to be reminded of that. It is a very useful 
object lesson. About 10 years ago it was discovered that there were 
moose in the southwestern corner of the Yellowstone National Park. 
It was counted as a fine discovery, because everybody thought they 
were extinct. But they were breeding in that sheltenMl corner of 
the Yellowstone National Park, from which they did not migrate at 
that time. 

Mr. Mondell. Dr. Hornaday, have you ever been there person- 
ally ? Have you ever be(>.n in that region? Are you sjieaking from 
personal knowledge ? 
53985—16 3 



34 GAME REFUGES. 

Dr. HoRNADAY. No, sir; I am speaking from the testimony of Mr. 
George Shiras, 3d, who has been over every portion of that section 
of the comitry. He laiows a good deal more about it than any other 
man Uving. 

Mr. MoNDELL. George Shiras went into that country at my sug- 
gestion. I told him of the moose along the upper Yellowstone River 
in and south of the park, and how the State of Wyoming had been 
protecting them. Wyoming had been protecting the herd for years 
before Mr. Shiras went there at my suggestion. I know that coun- 
try thorouglily. I have been over it frecjuently, and most of the 
moose in that region and most of that moose country is in the part 
of the State of Wyoming south of the park. I am surprised to hear 
it suggested Mr. Shiras or anyone made a discovery of moose in that 
section 10 years ago. We have known they were there and pro- 
tected them. 

Mr. Jacoway. Mr. Mondell, suppose you let Dr. Hornaday finish 
his remarks, and then we will give you another chance. 

Dr. Hornaday. I was proceeding to say that the moose were dis- 
covered in the southwestern corner of the Yellowstone National 
Park. That was the first information that came to me. I followed 
that up subsequently by every means in my power. Of course it 
is possible that some of my information was wrong. It would be 
strange if it were not. 

I have become anxious to see the moose become a permanent 
resident of the Yellowstone National Park. Mr. Shiras made an 
extensive exploration for moose about three years ago, and most of 
his work was done in the Yellowstone National Park. His articles 
were published in Forest and Stream, all of which is a matter of 
record. Now, the moose have increased and spread into State 
territory outside of the Yellowstone National Park, and, more is the 
pity, the State of Wyoming has recently granted an open season on 
that remnant of moose. In my opinion it is little short of crime to 
make war upon that little herd of moose there, where they are strug- 
gling against extermination, simply in the name of "sport." 

Mr. Mondell. At the reques-t of eastern sportsmen they allowed 
the killing of 50 moose in one year. 

Dr. Hornaday. I do not believe that any eastern sportsman 
worthy of the name ever preferred such a request. If one has ever 
done so, I would like to have his name. 

Now, take another State, the State of Colorado. Colorado has 
been for years quite a good game-protecting State. She had in the 
first instance a magnificent stock of big game. It included prac- 
tically all s])ecies of big game common to the "West, both of the moun- 
tains" and the plains, and what is the situation to-day? 

I remember that in 1900 the question of the deer as a food supply 
was brought to my attention by the slaughter of about 8,000 black- 
tail deer for food in Routt County. Now, 8,000 blacktail deer made 
a pretty good item m the food supply of that portion of Colorado 
in that year. But what is the case to-day in Colorado in regard to 
huntmg big game ? 

The big game species of Colorado have so completely disappeared, 
as game to be hunted, that to-day the State game commissioner, Mr. 
W. B. Frazer, publishes the fact that there is "no open season on 
deer, elk, mountain sheep, antelopes, wild turkey, quail, or pheasants," 



GAME REFUGES. 35 

The buffalo is not montioiuHl, l)cc<iusc the bulTulo was completely ex- 
terminated, long ago. Nothing remains to hunt hi the State of 
Colorado except the mere dregs and remnunts of bird life and small 
mammals. 

Gentlemen, the State of Colorado is not a solitary exception. I 
wish to Heaven it were. Conditions are all too nearly the same 
throughout the other States of the West, on the other side of the 
Great Plains. Down in the State of New Mexico the Nev/ Mexico 
State Game Protective Association, which contains a total member- 
ship of about 1,000 wide-awake men, in nine different local organiza- 
tions, has declared in its formal proceedings that if this Hayden bill 
does not become a law they believe it will be necessary to stop all 
deer hunting in the State of New Mexico in order to save the species 
from extermination. In the Carson National Forests of New Mexico, 
where there are a million acres of land available for deer, the liunters 
found last year, in the season for deer hunting, exactly eight deer that 
they could kill according to law. They ought to have found 2,000 
in that area. 

Up in the State of Washington the same conditions prevail. If 
ever there was a body of men that ever became thoroughly aroused on 
a subject like this, it is the game wardens, the game commissioners, 
and leadhig sportsmen of the State of Washington, especially center- 
ing at Spokane. They have sent to their Senators and Representa- 
tives m Congress some very strong, and even stern, recommendations 
in regard to this matter, demanding in unequivocal terms the passage 
of the Chamberlain-Hay den bill as a means of saving their remnants 
of big game and of restocking their forests. 

The Chairman, What is your view of conditions in my State, 
Arkansas ? 

Dr. HoRXADAY. The State of Arkansas needs several game sanc- 
tuaries, and needs them very much indeed. If this bill ix'comes a 
law I strongly urge the making of three sanctuaries in the Arkansas 
National Forest and thr<M> in the Ozark National Forest, no matter 
how small some of them may bo. In addition to that, I think that 
the State owes it to the Nation to make a State game sanctuary 
in the great feeding grounds and nesting grounds for ducks known as 
the Sunk Lands, m the northeastern corner of the State. 

It is high time for Arkansas to bo thinking seriously about per- 
petuating her game for the benefit of her people -to-day, to-morrow, 
and a hun(h-ed v^^ars hence. ^/^ 

The wild-life laws of Arkansas, like those of every other State iiitlie 
Union, always have been too liberal to the hunters of game and too 
hard upon the game. They have borne especially hard ujion the 
waterfowl. About four years ago— possibly it was five— a well- 
organized and very determined off ort, headed by Mi'. E. A. Mcllhenny, 
of Louisiana, was made to correct the whole situation and properly 
conserve the game of the State. A new code of game laws was 
drafted and put before the legislature. Good men and good news- 
papers in Arkansas strongly urged its enactment into statute law. 
But, as so often has happened in other States, the majority in the 
legislature was heedless and indifferent, and the whole campaign 
ended in a dismal and disappointing failure. A great opportunity 
was lost. 



36 GAME REFUGES. 

I am not going to speak much longer, gentlemen, but I do wish to 
say this : I regard this measure as virtually the last call for bringing 
back and maintaining a real supply of big game in the national forest 
States. Throughout my long western trip last fall the feeling that 
prevailed among the men whom I met who are interested in this sub- 
ject was universal pessimism. In the wState of Idaho, for instance, 
at Pocatello, a leading citizen said, hopelessly: 

"Oh, what is the use? The game is just as good as gone already, 
and there is no use in trying to save it. What is the use?" 

I know that the only way to really bring back to the States of the 
West a good supply of big game, and maintain it on a basis of legiti- 
mate sport, is for the Federal Government to step in and do what the 
States have not done and can not do. 

On one hand the trouble is with the old spirit of killing as long 
as there is any game left to kill, and on the other hand it lies in 
the State legislatures, which do not wish to antagonize large bodies of 
State sportsmen. That is only natural, perfectly natural. 

In every State that contains game, without any exception so far as 
I know, there is now no increase in big game except in actual game 
preserves. The State of Maine, which was supposed to be impreg- 
nable so far as the supply of deer is concerned, now reports through 
Maine sportsmen that the deer of Maine are rapidly decreasing. We 
once thought that the laws of the State of New York were so good 
that we would always have a fine supply of game in the Adirondacks. 
The count of the deer seen in the Adirondacks last year revealed the 
fact that we have only a fraction of what we supposed we had. 

In the face of that situation, what is going on in New York? 
What is happening, on the one hand, among the people who kill 
and, on the other hand, in the legislatures of our States ? 

The guides of the Adirondacks are insisting that ''the buck law^," 
which provides that no female deer shall be killed, shall be repealed, 
and that the killing of female deer shall be made legal. That idea 
started as soon as the buck law was placed on the statute books, 
and it has persisted ever since. It culminated at the last session of 
the New York Legislature, and I assure you that it would be difhcult 
to describe the vigor and determination of those guides in their 
attempts to brmg back the killing of female deer for sport. We had 
a tremendous fight in the last legislature. The cause of the deer 
was championed by every important wild-life protective association 
in the State of New York; and that means a good deal. I will not 
take up your time in giving the names of the national and State 
organizations who sent their officers to the legislature to fight the 
Kasson bill. After a great hearing we were told by a joint committee 
of the two houses that the Kasson bill was dead. The champions 
of the deer made such a good showing that everybody thought the 
bill was dead. And then what happened ? 

The politicians got busy; and when politics enters into wild-life 
protection, wo get beaten. The first thing we Imew that bill was 
quietly slipped through the assembly; but when it came to the 
senate it was beaten by a good majority. That was on the day 
before the session closed. We thought everything was safe; but m 
one of the last hours of the session the speaker of the assembly came 
down from his high office, put on his gum shoes, trailed over to the 



GAME REFUGES. 37 

senate, and secured the reconsideration and passage of that odious 
Kasson 1)111. 

Mr. Jj^LLioTT. And then what happened ? 

Dr. HoRNADAY. They had a "quick roll-call"; and the report of 
the clerk showed 48 men out of 50 as having voted for the bill. 
Onlv 6 of those 48 would testify that they had voted for it. A 
number of senators said they did not know the bill had been brought 
up at all. One senator, whom I know very well, was asleep in his 
hotel when the bill was passed, but he Wcxs marked as voting "aye." 

After that there was just one recourse — the governor of the State, 
We made representations to Gov. Whitman, and in a ringing mes- 
sage he vetoed that bill. New York State Wi:.s saved the disgrace 
of putting such a law upon the statute books. But it was not due to 
the legislature. Ordinj'-ril}" in wild-life protection the legislature of 
the State of New York is not only as good as the best, but very often 
it is better. But that is one time wherein they wont back on their 
good record. 

Now, if I thought for a moment that the Str.tes which enjoy the 
possession within their boundaries of national parks could and 
would handle this question successi'ul'y, I Axouid not be spending my 
time here, and I would not have devoted nearly a year's hard work, 
all of my spare time, I might sv.y — to this cause, 

Mr. Mondell has stated to you that he has had no request from 
any of his constituents asking him to support this bill. I think that 
the gentleman from Wyoming ought not to convey to you the impres- 
sion that the people who have pledged their approval and support 
to this })ill did not know what they w\ re doing. The people whose 
names appear in this list, in my Bulletin No, 2, are not people of the 
character who do things in matters of this kind simply through good 
nature, 

I took the trouble to go to Wyoming, and make an address in 
Cheyenne, and the newspapers contained a good deal of information 
about this whole matter. It was discussed in various ways and finally 
the people of Wyoming, of their oA\ai volition, circulated those printed 
cards giving the terms of the plan, and asking for signatures. Let me 
read you the names of some of the officers represented in this list. 
Fii"st, there is the governor; theii the secretary of state, the deputy 
secretary of state; Mr, Richard A. Scolt, justice of the suprenu^ court, 
and the clerk of the supreme court; the State superintendent of 
public instruction; the secretary of the State board of livestock com- 
missioners, who surely ought to be interested in this question, if 
anybody is; the commissioner of public lands; the chief clerk of the 
commissioner of public lands; the adjutant general; the assistant com- 
missioner of public laiuls; State Senator Hall; State Game Warden 
Wilson; Assistant Game Warden Sorenson; the secretary of the treas- 
ury, Mr, Millard, of the Wyoming State Board of Sheep Commis- 
sioners, etc. 

Here are the names of people inhabiting probably 25 cities and 
towns in Wyoming. All told, there must be at least 850 names of 
Mr. Mondeli's constituents printed here as having read over the 
Hornaday plan, of having approved it in writing, and pledged to it 
their support. 

That showing of public interest and support has been not quite 
dupUcated in other States, because it is not every State that is as 



38 GAME EEFUGES. 

much in favor of this Hayclen bill as is the State of Wyoming. But 
there are others that are mighty good seconds. 

The question of general expediency is worth a moment's considera- 
tion. 

I am now going to ask you to do, for a moment, a very remarkable 
thing, and that is not to consider the records of legal decisions and 
precedents. I am going to ask you to go back with me to the fountain 
head of all United States law, and of all relations between the State 
and the Nation, the Constitution of the United States. Let us see 
what has actually been done under the terms of the Constitution of 
the United States. 

In its preamble, the objects of the Constitution are declared to be 
" to form a more perfect union, establish justice, insure domestic 
tranquillity, provide for the common defense, promote the general 
welfare, and secure the blessings of liberty to ourselves and our 
posterity," etc. 

Section 8 of the Constitution proceeds to specify, briefly, in 18 
clauses, how those objects are to be attained. In the fourth line of 
clause No. 1 we find that ''Congress shall have power to * * * 
provide for the common defense and general welfare of the United 
States." 

Clause No. 18 provides the machinery necessary to secure the ends 
sought in the first 17 clauses of section 8. It says that the Congress 
shall have power — 

18. To make all laws which shall be necessary and proper for carrying into execu- 
tion the foregoing powers, and all other powers A^ested by this Constitution in the 
Government of the United States, or in any department or officer thereof. 

Under the authorization of the words "promote the general wel- 
fare," the Government of the United States has performed acts in- 
numerable of great and small importance, and expended uncountable 
millions of dollars of public money. As a few cases in point we cite 
the following, for not one of which did the Constitution specifically 
provide : 

The purchase of Alaska, for $7,000,000. 

The construction of the Union Pacific Railway. 

The completion of the Washington Monument. 

The construction of the Panama Canal. 

The construction, at this moment, of a railway in Alaska. 

The prosecution of vast irrigation schemes. 

The control of infectious diseases among animals. 

The eradication of insect pests. 

The eradication of wild animal pests. 

The eradication of wild animal diseases. 

The so-called "white-slave" law. 

The creation of 16 national parks. 

The creation and maintenance of six national bison herds. 

This list might be extended indefinitely, but it shows the wide range 
of national activities that very properly have been based on the 
constitutional provision for the promotion of the general welfare. 
That provision was wisely inserted to cover the thousand and one 
cases of national necessity sure to arise but impossible to foresee in 
detail in the year 1787, when the Constitution was adopted. 

The language of the Constitution is so plain and so explicit that it 
needs no judge or lawyer to expound it. The words "promote the 



GAME REFUGES, 39 

general welfare" are too plain to be mistaken, or to admit of doubt. 
If we were to revise the (Constitution to-day, we could not possibly 
improve upon that phrase as a means to provide for things now 
unforeseen. 

In the past Congress has not split hairs in the doing of things 
necessary for the general welfare. Why begin with so simple, so 
harmless, so inexpensive and so beneficial a measure as the making 
of game sanctuaries in the public domain without interference with 
legitimate industries? 

Gentlemen, in conclusion I repeat that this is constructive legis- 
lation. Contrary to Mr. Mondell's fear, I see no reason for the 
expenditure of any large sums of public money on this cause; none 
whatever. W<^ have taken pains to say that wo were not in favor 
of big apiiropriations from the Federal Government in connection 
with these forest reserves. We do not believe they are necessary. 

It is quite true, as has been suggested, that the men of the Forest 
Service are keenly interested in this development. The reason is 
quite evident. The men of the Forest Service see a great oppor- 
tunity to do a great thing for the American people. They are anxious 
to produce something good and great out of the raw materials that 
are now going to waste. 

I believe sincerely that if the National Government does not enact 
the Hayden bill into law and does not carry out some grand, com- 
prehensive scheme for repau-ing the mistakes of the past that the 
big game of the West, excepting in existing National and State game 
preserves, will totally disappear, and that hunting as a sport will 
become a pastime of the past. 

I do not agree with Mr. Mondell in believing that the food-supply 
question is absurd or n(;gligible; quite the reverse. I know this: 
That whenever a frontiersman is arrested for killing game out of 
season and is taken to the local court, in about 7 cases out of 10 
the jury sets him free on the ground that ''ho needed the meat." 
That is a very common expression out there: ''Not guilty: he needed 
the meat." The frontiersmen out West do not consider this food 
question in connection with big game as negligible; not by any 
means. 

You and I know, gentlemen of the committee, that in the United 
States there are not millions, but there are scores of millions, and 
hundreds of mdlions of acres of waste land to--day, in the Appalachian 
region, in the "VMiite Mountains, in the West, and in the South m 
which a vast amount of wild game might be produced if only the 
proper measures were taken. If we ever become so rich that 2. 000, 000 
deer a year are of no consequence as a food supply, th<Mi I am wrong 
and Mr. Mondell is right; but with beef at 25 and 30 cents a pound, 
a million deer a year added to the menu of the very men who need 
it most — the individual frontiersman in our wild countr}^— would be 
something well worth having. 

Mr. Chairman, I thank you for this opportunity. In conclusion, 
I would like to file with you. as an addition to my testimony, the 
following summary of the subject under consideration: 



40 GAME REFUGES. 

THE REAL MEANING OF THE CHAMBERLAIN-HAYDEN GAME SANCTUARY BILL (S. 6881; 

H. R. 11712).— A SUMMARY. 

Under "State control" the big game of the West has been well-nigh exterminated. 
Look at Colorado. In that State there is to-day no more hunting of elk, deer, moun- 
tain sheep, antelope, wild turkeys, quail, or pheasant. Other Rocky Mountain States 
are but little better off. 

• The Chamberlain-Hayden game sanctuary bill is before Congress because the repre- 
sentative people of the West sincerely desire to have what it will provide. Note in 
Bulletin No. 2 (the red one) of the permanent wild-life protection fund, State by State, 
the array of supporting governors (12), institutions, newspapers, organizations, and 
prominent men and women of the national-forest States. 

This law is needed and desired because it will bring back some of the vanished ])ig 
game, and do things that the States alone never will do unaided. 

This bill would take nothing from the public domain. It would not change the 
legal status of 1 acre of public land, except bv protecting the game upon it from being 
killed. 

It would sequestrate no agricultural lands and no grazing lands. The areas in view 
for these sanctuaries are the wild, remote, rugg'id, and now useless regions, utterly 
useless for agriculture and for grazing. Any settler who goes into such a region to live 
is doomed to perpetual poverty, because he can not conquer steep mountain sides and 
V-shapod valleys. 

It h not the part of wisdom to let those now desolate regions forever remain desolate, 
producing nothing of value to man s.ive timber and water. Even the sheepmen and 
cattlemen admit this — so far as heard from. 

No State can be forced to accept, game sanctuaries against the will of its governor. 
For example, if Utah, or any other State, has no forest lands that are unsuitable for 
agriculture and stock grazing.Ithen Utah need not have any game sanctuaries. There 
is notliing mandatory about this plan, and each governor has a check on operations in 
his State. 

If the western States had not said that they desire these sanctuaries and all that they 
will do for the West, the sanctuary bill would not now be before Congress. The East 
can endure lifeless western forests if the West can. The people of the East have not 
been asked to try to "rush" the Chamberlain-Hayden bill through Congress. 

Tliis matter is proposed to Congress on a basis of absolute good faith. It is not in- 
tended as an "entering wedge" for big new appropriations and a lot of new high- 
salaried positions; but eventually it will cost about $20,000 per year of extra money. 
The undersigned never will ask for and never will approve the making of "big appro- 
priations" under this head. If the plan is not worth 120,000 per year, it is not worth 
considering. We call it real, constructive conservation, on a large scale, at practically 
no extra cost. 

If at any time the people of the United States decide that the public welfare demands 
the breaking up of the national forests, and their opening to settlement and land 
speculation, then "let the tail go with the hide," and deconsecrate and break up the 
game sanctuaries at the same time. The East can stand it if the West can; and there is 
nothing in the proposed law that can prevent its repeal. 

In the States that will be affected by the proposed game-sanctuary plan, there are 
probably 1,000,000 men and boys who go hunting each year and kill game — if they 
can find any. To them this bill means a continuation of legitimate sport; and State 
control alone means the extermination of big-game hunting in the near future. These 
are hard facts, not theories; and the American people can take them or leave them. 

STATEMENT OF MR. W. C. BARNES, ASSISTANT FORESTER. 

Mr. Barnes. Gentlemen, I do not Vv^ant to enter into the question 
of ownership of the game or the constitutionahty of this hiw, but I 
want to point out to you gentlemen the administrative difficulties 
which we are meeting in the Forest Service in handling the gam.e 
question. I will preface my remarks by explaining that I am a 
westerner, born and raised. I have been for 26 years in the range 
cattle business of the West, and I have seen the buffalo, deer, and 
all the game disappear, as every western main has, before the settlers' 
farms and live stock. 



GAME REFUGES. 41 

Looking at it from the standpoint of meat producing, I agree witli 
Mr. Mondell. I consider that one good cow is worth several head of 
deer or elk. Several times in handling this matter we have been 
compelled to go into some national forest in a Western State and 
throw out as many as 20,000 sheep to make room for a few hundred 
elk. It always hurt me, for I always felt that the sheep were pro- 
ducing something which was of an economic value to the country 
and should always have tlie preference up to a certain point. I do 
not mea,n to say that I woidd wholly wipe out the game in favor of 
the settlers' stock. There is a reasonable limit that we have endeav- 
ored to arrive at in handling this matter. 

The oidy point I wish to clear up is this: One of the States, without 
consul ri:g us, without notifying us, without asking us "Will it suit 
your plaiis, will it meet the demands of the grazing men for their 
stocks' will pass a law designating as a game preserve any portion 
of our forest Avhich they choose, nine times out of ten vsithout i\ny 
satisfactor}^ boundaries and without any maps to show where it lies, 
and then say to us, "Enforce it." We are compelled to go into 
these game preserves and outline them, send our rangers to post the 
boundaries, and put up signs so as to protect the citizens in hunting. 
We are also compelled to enforce the law, because the State men 
seldom come in there to see to it. Those laws are frequently changed. 
Often the first we know of the passage of a game-preserve law is w-lien 
we see it in the papers. We have to w^rite to every State legislature 
at the close of their session and ask the chief clerk for copies of 
measures affecting the ranges inside the national forests. In two 
western States last year they passed game-preserve bills which were 
impossible to lay out, simply because their boundaries were so U7i- 
certain and indefinite. The whole thing amounted to nothing and 
we could not protect them. In one Western State the law allows any 
board of county commissioners to lay out game preserves in their 
county to suit their ideas. These are frequently changed and gen- 
erally so crudely drawn that we are unable to locate them or the 
forests. 

Mr. Reilly. How will this law remedy that situation ? 

Mr. Babxes. It will do away with the States making these pre- 
serves and give us the right. We would not do away witli the game 
preserves, I think we would make more, but before we made them we 
would know the area on which the preserve should be laid out in 
order to meet the demands for the protection of the game, as well 
as for the settlers stock. It would give us the power to say where 
the game preserves should be in the forest. 

Mr. Reilly. How many States have already marked out game 
preserves as contemplate(l by this bill ? 

Mr. Baiixes. I know every western State in the country, and not 
over three of the States have ever taken any steps to mark the 
boundaries; they have left it to us. 

Mr. Reilly. How many States have made out the outline of a 
preserve and completely marked it? 

Mr. Barnes. I think I am safe in saying not a single one. We 
meet this question every year. The stockmen demand the range 
and the game men demand that the stock be kept off the ])rcserves. 
We nave had no voice in the matter of laving out and marking them. 



42 GAME REFUGES. 

The law practically directs us to regulate the grazing on the pre- 
serves, without having any opportunity to express our opinion as 
to the proper lines which should he covered. This question comes 
up every year and it is embarrassing to us. As I say, we are fre- 
cpiently called on to throw a lot of sheep out in order to protect the 
game. The stock men protest against it vigorously and we appre- 
ciate their situation because they go in there to make a living. On 
the other hand, the game men want the sheep thrown out. 

Mr. Reilly. Is the game growing so rapidly that it encroaches on 
the land of the stock growers ? 

Mr. Barnes. The stock business is growing so rapidly that it is 
encroaching on the game land. We are holding to-day, closed to all 
grazing in the national forests more than three million acres of land 
most of which could be and would be occupied by the stock of the 
settlers. I have in mind one area lying north of the Yellowstone 
Park. I have spent two years going over tlie area and investigating 
that question. We threw out 20,000 sheep at the demand of the 
game men which I considered a little unreasonable, but the public 
sentiment was so strong that finally we prohibited the grazing. 

Mr. Reilly. Do I understand that land available for grazing 
purposes should be devoted to game preserves ? 

Mr. Barnes. That is the policy. 

Mr. Reilly. The doctor's statement was that there are millions 
of acres of land not available for grazing which should be used for 
those sanctuaries ? 

Mr. Barnes. Yes, sir. 

Ml'. Reilly. Why should the department compel the stock men 
to move for the purpose of putting on elk when you yourself made 
the statement that it is not profitable ? 

Mr. Barnes. There are two sides to it. We try in all fairness to 
give each side a reasonable amount of range. 

Dr. HoRNADAY. Mr. Barnes is talking about State preserves, not 
the national forests ? 

Mi\ Reilly. The Agricultural Department is supposed to control 
the national forests not as the States want them but according to 
the economic view as advanced by the United States Government, 
and I do not believe that the Agrictdtural Department is justified 
in throwing the stock men off of grazing and pasture land and putting 
on elk which, according to your statement, is not economical and is 
unprofitable. 

Mr. Barnes. You must admit that there is a big sentiment for the 
preservation of the game and that we must recognize it. 

Mr. Reilly. I think that the preserves should be located where 
the land is not economically valuable for grazing. 

Mr. Barnes. I can not agree with you. The game must eat. Elk 
and deer and animals of that kind must eat and they have to have 
the same food, to a certain extent, as sheep and cattle. 

Mr. Reilly. You made the statement at the last meeting that the 
wild game should be on the land not available for grazing purposes, 
according to my recollection. 

Mr. Barnes. There is an immense amomit of inaccessible range in 
the West which is not occupied by stock, and that is where the game 
preserves should be located if they would exercise good judgment in 
laying them out. I have in mind a case where the State spread the 



GAME REFUGES. 43 

preserve over everything without regard for the settler or anything 
else, and we were obliged to prohibit grazhig because there was a 
certain responsibility to protect the game. That could have been 
arranged by the State authorities, calling on us for advice, and they 
could have laid out a much smaller area. We meet just such admin- 
istrative difficulties in handling this matter. We have no control. 
The State does not consult with us and there are frec^uent changes of 
which we have no information. 

Mr. Reilly. I can not see how this bill is going to relieve 3"Ou. 
If you gentlemen locate a game preserve that is too small the legis- 
lature will go on and locate a larger one. This bill does not destroy 
the power of the legislature to increase the game sanctuaries in size ? 

Mr. Barnes. I do not thmk it would. 

Mr. Reilly. You would still have the same difficulties about ad- 
mmistration ? 

Mr. Barnes. We might have, but the States have always been 
fairly willing to accept our advice. Thej^ do not object to our helping 
them. The States did not object when the Government appropriated 
money to purchase lands in the Jackson Hole on which to raise hay 
for the elk; they took it very kindly. It now costs the Agricultural 
Department about $2,000 a year for the men employed to look after 
these lands, and they yearly put up large amounts of hay to feed the 
elk. If the States found that we were laying out the game preserves 
so as to meet the situation from the game men's point of view and to 
mterfere as little as possible with the stockmen, I thmk they would 
give up any attempt to force their own preserves onto us; I am quite 
sure they would. 

Those are the only points that I wished to call attention to as a 
practical stockman. I am for the game, and do not want to see it 
wiped out. I do not believe m rubbmg them off the map just because 
the stockmen want to graze some sheep. There is room for both. 

Mr. Jacoway. You say there is not room ? 

Mr. Barnes. No; I say there is. The laws passed by the States 
are often very peculiar. The}^ are passed by members of the State 
legislatures, who are mamly absolutely ignorant of the true condi- 
tions. Our men are posted and know every nook and corner of these 
forests. They know where the stock can go and where the game can 
go. \^nien we call on them for a report we get the exact facts. ^Vhen 
we decide to set aside an area in the forest as a permanent game pre- 
serve for the protection of game animals and to give them sufhcient 
land on which to graze, we draw lines which will meet those conditions 
and after careful study the lines are established. Those are the main 
points. We only want to be relieved of this embarrassmg situation, 
which we believe this bill will materiall}' remedy. I have no further 
criticisms. 

Mr. MoxDELL. I would not take up the time of the committee 
further, except that in a way, as I have heretofore said, I am in a 
position that is not entirely free from embarrassment. A very 
considerable number of very fine people m my State, men and women, 
public officials and others, have, by signing a petition, indorsed 
what is known as tiie Hornaday plan. It is true that this followed 
the visit from Dr. Hornaday. The people admire liim for the work 
he has done and his enthusiasm for game. He spoke very kindly 
of what we had done up to that time, just a little more so than to-day. 



44 GAME RErUGES. 

He left our people all feeling very good indeed, and I think they 
would have signed anything that Dr. Hornaday presented to them 
that seemed to mean game preservation. A number of those good 
people have written to me. I have simply said to them this: I can 
not find written anywhere in my commission anything that justifies 
me in shortening the jurisdiction of the State whicli I represent. 
Whenever you point out to me anywhere any commission of that 
kind then I will consider a bill of this kind favorably. 

I am not so tremenviously insistent upon State or local rights that 
I stand for them in an extreme way, init I f^el convinced, as much 
as I ever felt convinced of anytliing in mv life, that if the Congress 
had the power to do it i^ should not establish Federal control over 
game in the West. The friction, the loss, ti'e damac:e v'ould be so 
tremendous compared with the benefits, that there is no argument 
for it. 

But whether viewed from the standpoint of the policy involved I 
personally favored the bill or not, I would not be justified in voting for 
it because in doing so, as a representative of the people of Wyoming 
to the Congress, I would be surrendering or attempting to surrender 
a part of the jurisdiction of the State. I have no authority to do 
that. That's not what I am sent here for. I am sent here to repre- 
sent the people of the State and with no authority from them to sur- 
render any part of tlieir jurisdiction. 

If those who are favorable to legislation of this character do not want 
to take the trouble to influence the States to legislate as they tliink 
they should, or if they are of the opinion that the people of the States 
would not, in any event, legislate as they think they should, they at 
least should go to the proper source of po\^ er to secure the surrender 
of the State's jurisdiction. If the legislature of my State, which has 
autliority to do it, will by proper action, acting on behalf of the people, 
surrender the jurisdiction of the State over game to an extent that 
would justify such legislation as this, I would not feel warranted in 
objecting to it. 

If the bill provided for the creation of these game preserves or 
sanctuaries upon tlie approval of the State legislature, the situation 
would be very different, and while I might doubt the wisdom of the 
policy of dividing jurisdiction, as a loyal citizen of the State I would, 
of course, acquiesce in any action which the legislature representing 
the people of the State should, after consideration, conclude to take. 
I prize my commission as the representative of the people of Wyoming 
in Congress, but I do not forget its limitations. It does not authorize 
me to agree to any measure which conflicts with tlie State's jurisdic- 
tion even though certain of my constituents might desire me to do so, 

I have already taken up as much of the time of the committee as 
I am justified in doing in discussing the game situation in our State, 
but if the committee will allow me I want to say just a word more 
about the moose, in view of what Dr. Hornaday has said on that 
subject. Dr. Hornaday told you that "about 10 years ago it was 
discovered that there were moose in the southwestern corner of the 
Yellowstone National Park. It was counted as a fine discovery, 
because everybody thought they were extinct." When I asked Dr. 
Hornaday as to his authority for that rather remarkable statement, 
he said he was speaking from the testimony of Mr. George Shiras, 3d, 



GAME REFUGES. 45 

who, ho said, had been over every portion of that section of the 
country. "He knows a good deal more about it than any other 
man hving," said Dr. Honnuhiy. It so happened that I was instru- 
mental in having Mr. Shiras, "who is an enthusiastic naturalist, a 
lover of wild game, a famous hunter w^ith the camera, visit the region 
in question. I had been in the upper Yellowstone country, both in 
and out of the national park, the year before. I had seen many 
moose and noted their great increase since a former visit. I was 
much gratified with this increase in the moose herd, which liad re- 
sulted partly, it is true, from the fact that the moose were ]5rotected 
in the park, but more because they had l)een for years prot(Hned by 
the laws of Wyoming. I explained to Mr. Shiras how lie could 
reach the placid waters of the upper Yellowstone from Yellowstone 
Lake with a canoe, and the following year he made the visit and 
wrote the description to which Dr. Hornaday has referred, but I 
assume Mr. Shiras never claimed he made a discovery of sometliing 
that was not known to our people. It was a discovery, or at least 
news, to those like Dr. Hornaday, who had not, up to that time, 
been familiar with the facts. The upper Yellowstone River, above 
Yellowstone Lake, both in the park and in the country soutli of it, 
has for a considerable distance comparatively little fall."^ It is almost 
sluggish, and the country on eirher bank is low and swampy in 
places, affording ideal feed for moose and the conditions under which 
the moose thrive. It is doubtful if the moose would thrive in con- 
siderable numbers if they got far beyond that particular kind of a 
region. 

Mr. Reilly. How many are there? 

Mr. MoNDELL. There have been various estimates made. The last 
time I was in there, seven years ago, I rode down the river, making 
no effort to keep out of the way of the game, and as I went down the 
river I guess I saw 20 or 30. There are in all perhaps a thousand or 
more. 

Mr. Barnes, I saw 100 there. 

Mr. MoNDELL. When in a half day's trip you see that many, there 
are, of course, many hundrefls. We have preserved the elk in 
Wyoming. This great herd winters and always has wint(>red in the 
region south of the park. About one-third of the herd, perhaps half, 
spends the summer in the park. 

Now, Dr. Hornaday suggests that we must enact the legislation 
because the States will not take care of the game, that the sentiment 
is so lacking and people are so indifferent that he despairs of any 
success. He argues against the State of Colorado having jurisdiction 
over this matter when, as he informs us, the State of Colorado, by 
law^, has made a game preserve of the whole State. 

Mr. MoNDELL. May I have about five minutes to reply to one or 
two little n) a tters? 

Mr. Jacoway. Dr. Hornaday wants to be heard. 

Mr. MoxDELL. 1 want to refer to one or two matters while they are 
fresh. 



46 GAME EEFUGES. 

ADDITIOHAL STATEMENT OF HON. FRANK W. MONDEII, A 
REPRESENTATIVE IN CONGRESS FROM THE STATE OF 
WYOMING. 

I tliiiik our friend, in citing the decision in the Mid West case, 
made his statement stronger than he intended to miake it. The 
Mid West case involved no c{uostion whatever except the right 
of the President to set aside lands and to withdraw theni from 
entry. There is nothing in the Mid West case that can possibly 
be tortured into any bearing upon the question at issue in this 
case. The committee s attention has been called to the fact that 
the Federal Government has legislated in some few cases somewhat 
along these lines. Well, I am glad the gentlemen did call attention 
to that fact because that legislation illustrates how these Federal 
bureaus edge in on the claim that certain legislation is restricted in 
its effect or local in application, establishing no precedent, and then 
cite the legislation is an argument for further encroachment. The 
Federal camel s nose gets into the tent and then he bumps the tent 
over. 

You take the case of the Wichita Bird Game Preserve. That was 
Indian land down there and the argument was that this land be- 
longed to the Indians anyway; it was Indian land; it was not public 
land, and we badly needed to preserve the game down there. These 
Indians were a lawless, outrageous set, it was said, and there was no 
such thing as protecting the game in such a country under a State law, 
that there was a peculiar situation down there, and so by common 
consent, but against the better judgment of many, that action was 
taken. I remember very well the arguments which were made in 
behalf of it. Then it came to the matter of the Grand Canyon game 
refuge. The Grand Canyon is a national monument. Some day it 
will be a national park. That is conceded by everybody. It just 
remains for some feUow^ to draw a bill, get busy and urge Congress to 
establish a national park there and it will be done, followed by the 
cession of jurisdiction. When it came to the question of protection 
for that country which was a national monument — and which will 
eventually be a national park, with complete cession of jurisdiction 
by the State — there was no particular objection to what was pro- 
posed to be done with regard to the birds and animals down in the 
bottom of that aw^ful chasm, far from the haunts of men. 

The matter of bird preserves recalls some very interesting and 
curious recollections upon my part, because I was a member of the 
Committee on the Public Lands when that thing was put over, and 
I am not going beyond the bounds of proper legislative speech when 
I use the term "put over." 

Mr. Jacoway. Do you not think it would be better, from your 
viewpoint, to say "run over"? 

Mr. MoNDELL. No ; we were not run over. Run over means some- 
thing gotten over in spite of you. That was not true in that case; 
we agreed to it. What I mean is that it was put through — well, I 
will not say on false pretenses, but it would come as near being that 
as aiiything could be. This was the situation : The President had, on 
the Gulf coast, set aside some uninhabited islands as game refuges. 
Nobody cared what the President did with those uninhabited islands 
which were, for a considerable portion of the time, under the wash 



GAME REFUGES. 47 

of the sea, at least in time of storms. There were other islands off 
the coast in the northvrest and elsewhere equally inaccessihle, and 
where the same general condition existed. There were small areas 
of that kind along the coast that from time to time the President had 
designated as bird refuges. They had not been able to protect them 
by reason of lack of authority and they came to Congress saying, "We 
want legislation. We realize that the creation of these bird preserves 
was not legal, but we now want legislation so we can protect them." 
The matter came before the Committee on the Public Lands at the 
time I was a member of it. It was discussed up and down. They 
said, "We do not intend to do any more of. this sort of thing. We 
are not asking authority to create any more of these bird preserves. 
All v»'e want to do is to take care of what we have. These refuges 
are uninhabited — inhabitable — and they are far from the operation of 
the machinery of the States, and we want to protect them and take 
care of them." The Committee on the Public Lands had very 
decided views with regard to the matter, but finallv it was agreed 
to provide for taking care of those preserves which had been estab- 
lished. And this is the language of the bill that was drawn: 

That it shall be unlawful for any person to hunt, trap, capture, willfully disturb, 
or kill any bird of any kind whatsoever or take the eggs of such birds on any lands 
of the United States which have been set apart or reserved. 

Those of us who were a little suspicious insisted on the word 
''heretofore" being used, so that it would read ''on any lands of the 
United States which have been heretofore set apart or reserved." 
They said "No; that will not do, because just now the department 
has under consideration the reservation of a few more of these small 
islands lying off the coasts, and can not now act, owing to lack of 
proper description, and while this bill really means ''heretofore," if 
the proclamations did not issue in these cases until after the bill 
passed it might be fatal, so far as those new preserves are concerned, 
if some one raised the point." 

It was insisted, however, that the lanojuilge of the bill did not, in 
fact, authorize the creation of more bird refuges, but more definite 
language, it was said, might make trouble, in view of ^he situation 
I have referred to. Officials of the departments interested in the 
legislation gave that as their interpretation of the bill. That bill 
was not passed without consideration, and it was passed under false 
pretenses. The chairman of the committee, Mr. Lacey, said after- 
wards to me, "I did not think, and told you I did not think, that it 
would authorize the creation of any more of these preserves, but 
the}^ have created them, and now tliat I look it over I think it will 
bear that interpretation." 

Officials we understood as assuring us that there was no thought 
on their part that the bill would allow the creation of new preserves 
were soon found taking another view of it. The bill never would 
have passed, never would liave become a law, if it Innl be(>n unchn-- 
stood it authorized the creation of new bird preserves. 

Mr. Reilly. How many have been created since then? 

Mr. MoNDELL. Almost immediately after the bill passed, to my 
amazement I was informed by a member of the Biological Survey 
that they held the biU gave authority to create as many bird pre- 
serves as the President saw fit to create. Let me teU about one in 



48 GAME EEFUGES. 

my State. A man had applied to have a certain reservoir site re- 
served; he proposed to spend $200,000 or $300,000 in creating a 
reservoir. They took his maps — his reservoir was ahnost circular — 
and made one of these preserves 400 feet wide, a doughnut around 
his reservoir. He never built his reservoir and it is aU dry land 
to-day. You can not hunt m that country without bemg in danger 
of going across that unmarked 400 feet of Federal preserve and vio- 
lating a Federal law, though you may be huntmg m accordance with 
the State law. If they had enforced the law with regard to that 
particular bird preserve there would jio doubt have been several of 
my constituents in Federal jails right now. The only reason why 
no one has tested that law is that there has been little effort to en- 
force it. Whenever it is enforced it will be tested, just as the migra- 
tory bird law is bemg tested. That law was drawn using language 
that is capable of double construction "which have been set apart or 
reserved." 

The committee that reported it would not have reported it without 
the word "heretofore" in it if there had not been pledges and promises 
by men that they considered upright and honorable that they did 
not intend to interpret that as authorizing new preserves. It would 
apply, we were told, to bird preserves that had theretofore been 
established. It is a fine illustration of what is sometimes done, in 
persuading Congress to make a grant of pov/er on the theory that it 
does not go far and does not affect much, but being secured everything 
is claimed under it. All kinds of conflicts will arise under that law 
eventually, not with regard to these outlying islands, but with regard 
to these bird preserves that surround reclamation reservoirs where 
the conflicts are bound to be continuous if any regulations differing 
from State law are enforced. 

Mr. Jacoway. Following out your theory, then, you tliink the 
camel has gotten about half his body into the tent up to date ? 

Mr. MoNDELL. He has gotten his nose in under that law. Having 
had that experience, we are a little more careful than we were even 
at that time. I do not want to leave a wrong impression. I am not 
insisting that the Federal Government has no right to keep hunters 
off of its lands; I think it has the right to do that, but it has not any 
right to define and punish as a crime the taking of game. 

Mr. Reilly. Of what good is it to exercise that right to keep them 
off the land if they have not the right to punish for taking game 
improperly ? 

Mr. MoNDELL. It has the right to punish trespassers; to punish 
for trespass and for injury to its property. The courts have never 
held that the Federal Government had any authority or jurisdiction 
except to protect its property. It has the right to do that. Our 
opposition is not based upon the theory that we do not want the game 
preserved, but it is based upon the fact that we do not think this is 
the way to do it. 

Mr. Williams. Let me state for the information of the committee, 
since the question has been asked, that I believe there are about 70 
Federal bird preserves now. 

So far as elk, moose, antelope, deer, and mountain sheep are con- 
cerned, if you put the whole State of Colorado in these preserves 
you would do no more than the Legislature of Colorado has already 
done. Dr. Hornaday says that Colorado game preservation laws aro 
proof there is httle or no game there. On the contrary, if there was 



GAME REFUGES. 49 

no game there there would be no object in having a closed season 
protecting it. There is no doubt, however, but that the game has 
been depleted in Colorado. As a young man I lived in Colorado, and 
the mountains were covered w^ith wild game. It is not possible to 
bring back the game as we had it in that country 30 years ago. That 
woukl not be possible, or profitable . Nobody imagines that can be 
done or wants to have it done. While the doctor says tliere is little 
sentiment in the West in favor of game, our friend Barnes has called 
attention to the fact that the sentiment is so strong that in some cases 
the State has created game preserves extending over more territory 
than he thinks they should extend over. 

As I said in my statement a moment ago, better preservation for 
game is to be had, in the long run, in my opinion, by closed seasons 
covering a great territory than by having small patches and areas 
here and there where there is no hunting allowed at all. Mr. Barnes 
called attention to the fact that in my State we at one time made 
the whole of the Big Horn Forest Reserve a game preserve and we 
made it too large, he thought, because he said it deprived some sheep 
of feed. Well, it would not deprive sheep of feed if there were not 
some game there. Dr. Hornaday said there w^as no game in the Big 
Horn. I have not hunted game in the Big Horn, but I formerly 
spent some time in that beautiful mountain country and I have seen 
a great deal of game there and it is coming back. It was a good 
thing for our legislature to make tliis whole mountain area a game 
preserve and prohibit hunting absolutel}^ for a time until the game 
should have an opportunity to increase reasonably. 

I tliink that what Mr. Barnes has said indicates that there is a 
healthy sentunent in the West for game preservation, and if the 
gentlemen having to do with the forest res(^rves will endeavor to 
arrange their grazing in a way which fits in with the State provisions 
with regard to reserves there will be no chfficulty. It is not necessary, 
because a State like the State of Colorado prohibits all kinds of big- 
game hunting all over the State to largely reduce the amount of 
grazing on all the reserves of the State, though, of course, if that ])ro- 
hibition continues long enough the game would increase to an extent 
where you would have to reduce the number of grazing animals, ])ut 
that comes very slowly, and l)efore that tinu^ arrives the game laws 
would be modified. 

I want to thank the committee for having been very patient with me. 

ADDITIONAL STATEMENT OF DR. WILLIAM T. HORNADAY. 

Dr. Hornaday. I would like one minute in wiiich to put something 
into the record. There is a question of fact at issue between Mr. 
MondeU and myseK in regard to the presence of moose in Wyoming. 
I am going to read a few lines from a book entitled "Our Vanishing 
Wild Life," page 336: 

Lieut, ("ol. L. M. Brett, United States Army, superintendent of the Yellowstone 
Park, advises me (July 29, 1912) that the wild big game in the Yellowstone Park in 
the summer of 1912 is, as sllo^^^l below, based on actual counts and estimates of the 
park scouts, and particularly Scout McBride. The estimates of buffalo, elk, antelope, 
deer, sheep, and bear are based on actual counts or very close observations, and are 
pretty nearly correct. 

He estimates wild buffalo, 49 ; moose, 550; elk (in summer), 35,000; 
antelope, 500; mountam slieep, 210: mule deer, 400: white-tail 

53985—16 4 



50 GAME BEFUGES. 

deer, 100; grizzly bears, 50; black bears, 100; pumas, 100; gray wolf, 
none; coyotes, 400; and pelicans, 1,000. 

Mr. MoNDELL. I do not think I said there were no moose in the 
Yellowstone Park; I said the moose country. The country m 
which the moose live, grow, and breed is not by any means whoUy 
in the Yellowstone Park. Of course, the park is right up against 
it, and the moose in the summer time are all over that entire region. 
In the winter they are almost whoUy south of the park. 

(Thereupon the subcommittee adjourned.) 



MEMORANDUM ON THE CONSTITUTIONALITY OF THE BILL TO ESTABLISH GAME REFUGES 
IN NATIONAL FORESTS. 

(Submitted by John H. Wallace, jr. , Commissioner Alabama Department of Game and Fish.] 

(1) The fundamental principle underlying the bill, namely, the setting aside by the 
Government of parts of the public lands for the protection of game, is not new in the 
legislation of Congress, as witness (a) the act of Jaunuary 24, 1905 (33 Stat. 014), author- 
izing the President to designate areas in the Wichita Forest Reserve, Kans., "for the 
protection of game animals and birds and be recognized as a breeding place therefor"; 
(6) the act of June 29, 190G (34 Stat., 607), authorizing the President to designate areas 
in the Grand Canyon Forest Reserve, Ariz., "for the protection of game animals 
and be recognized as a breeding place therefor' '; (c) the act of June 28, 1906 (34 Stat., 
536, now sec. 84 of the Penal Code), prohibiting luider penalty, "any person to hunt, 
trap, capture, willfully disturb, or kill any bird of any kind whatever or take the 
eggs of such birds on any lands of the United States which have been set apart or re- 
served as breeding grounds for birds by any law, proclamation, or Executive order, 
except under such rules and regulations as may be prescribed from time to time by 
the Secretary of Agriculture." 

(2) The United States with respect to its public lands within a State has all the 
rights of a private proprietor to maintain its possession and prosecute trespassers and 
may legislate to this end even though such legislation involve the exercise of police 
power. (Camfield v. United States, 167 U. S., 518.) 

The provision in the Constitution (sec. 3, Art. IV) providing that "Congress shall 
have power to dispose of, and make all needful rules and regulations respecting, the 
territory or other property belonging to the United States," is primarily a grant of 
power to the United States of control over this property, and this control is exercised 
by Congress to the same extent that an individual can control his property, and it is 
for Congress and not for the courts to determine how the public lands shall be admin- 
istered. (Light V. United States, 220 U. S., 523.) 

(3) A private proprietor of lands in any State has the right, independently of any 
statute on the subject, to forbid persons coming upon his lands for the purpose of 
hvmting, and he need give no one a reason for doing so. If the law were otherwise, 
he would hold his property subject to be used for hunting by others without Ms per- 
mission and against his interests. Certainly the United States, with respect to its 
lands, has the same power to forbid persons coming on these lands for the purpose of 
hunting. That is all that this bill proposes. The question as to who owns the game 
is as foreign to the question of the right of the United States to prevent hunting on its 
lands as to the right of the private proprietor to proliibit hunting on liis lands. 

It is apprehended that in most, if not all, of the States statutes are in force pres- 
cribing in what manner the owner of lands shall warn the public not to hunt thereon . 
These are popularly referred to as "posting laws." It did not require these statutes 
to enable the owners of the lands to prevent persons from hunting thereon, but inas- 
much as, unless the lands were posted against hunting persons might not know that 
the owners objected to their hunting, the statutes prescribe in what manner the owner 
shall make known his objections. The pending bill, after exercising the right of the 
United States to prevent hunting upon certain areas in the national forests, provides 
for the designation of the lands upon which hunting is not to be permitted and for 
the posting of these areas. 

(4) Former Attorney General Knox, while he was Attorney General, rendered two 
very exhaustive opinions upon the fundamental principle involved in this bill, and 
came to the conclusion in both that there was not the slightest doubt of the power of 
Congress to set aside portions of the public lands for the protection of game. (23 Op. 
Atty. Gen., 589; H. Doc. No. 321, 57th Cong., 1st sess.) 



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